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^
COMPLETE*COL LECTION
State Trials
AND
PROCEEDINGS FOR HIGH TREASON AND OTHER
CRIMES AND MISDEMEANORS
noM THS
EARLIEST PERIOD TO THE YEAR 1783, .
I
WITH JfOTES AXD OTHER ILLVSTRATlOtTS :
COUPILSD BT
T. B. HOWELL, Esq. RR.S. F.S.A.
INCLUDIMO,
nr ADDITIOH TO THZ WHOLK OF THE If ATTBB COKTAIRED IS THE
roiIO EDITION OF BARORAVE,
rPWAKDB Of TWO HDKDBBD CASES NEVBB BltFOBB COLLECTED;
TO WHICH IS SUBJOIKIS
A Table of Parallel Rsfsrescb,
KIltSKRIirG THIS EDITIOK APPLICABLE TO TBOSE BOOKS OT AUTHOBITY IK
WHICH BSPBHENCES ARB MADE TO THE POLIO 1
IN TWENTY-ONE VOLUMES.
VOL. m,
3—16 CHARLES 1 1627—1640.
LONDON:
JVMuI hy T. C. Award, Ptteticmtgh-Caitrt, Fttel-Stna :
JOE LONGMAN, HURST, REES, ORME, *»d BROWN ; J. M. RICHARDSON
BLACK, PABBURY, add ALLEN; BALDWIN, CRADOCK, akd JOY
E. JEFFERY; J. HATCHARD; R. H. EVANS j J. BOOKER; E. LLOYD
J. ^pCrni^.BUDD AXo CALKIN; AND T. C. HANSARD.
' ' 1816.
,ji,..c:,yGoogle
UBRARY OF THE
LELAND STANFORD JR. UNIVERSITY.
'" ■ 27 ;900
,1,1.1, Google
TABLE OF CONTENTS
VOLUME III. .
STATE TRIALS IN THE HEIGN OF
KING CHALES THE FIRST,
A. D. I6ia7— 1640.
*,* 75e Wiu MaiUr it nmked [N.]
137. Proceedings on the Habus Cobpus, bronght by sir Thomas Damel,
Sir John C(ffb«t, Sir Walter Earl, Sir John HereniDgbam. and Sir Ed-
mund Hampden, a. d. 1627: Togetherwith the Proceeding! in Parlia-
ment, relating to the Libott or the Svbjbct, a. d. 1628 and 1629 - 1
138. Caae of Walter Lova, esq. Sheriff o^iWilti, and one of the Borgeues for
Bath, for absenting himielf from hta Bailiwick to attend hii Duty in
Parliament, 1629 [N.] 234
139. Proceeding! sgaiott Wiu-tah Stkoud, esq. Walter Long, esq. John
S£LDBN, esq. and Others, on an Habeas Corpus, in Banco Regis, 1630 233
ISO. Proceedings against Sit Johh Elliot, Deneil Hollii, esq. and Benjamin
Valentine, esq. for seditious Speeches in Parliament, 1629 - - SO*
in. Proceedings against Soobr Manivakinc, D. D. for preaching and pub>
liahing two Sermons, maintaining Doctrines tending to the Subver-
■i<»i of the Laws and Liberties of the Kingdom, I62t [N.] - • SSt
193. The Case of Hugh Pine, esq. upon an Accusation of Treason, for Words
8p<riMn in Contempt of the King, 1623 [N.] - - - ■ - 359
ISi. Proceedings against Jobm Feltom, tor th« Murder of the Duke of Bvck-
in^am, 1628 [N.] - - 307
D;j,i,:«,.,yGoogli:
TABLE OF CONTENTS.
Pagt
134. Froceedingt agaiiut Mr. Richabo Ciumbsss, in the Sttr-ChBinber, for
■cditioua ^ecbei before the Privy-Cooncil, 1629 - - - - 37*
135. Proceeding! in the StaT*Cfaaraber sgaiott Dr. ALEUMin Leigbton, for
a Libel, 1630 - - ^ - - SS3
. 136. Proceedings in the Stu-Chamber agaioit tbeSari of BsDroRD, the Eari
of Clare, the Earl of Sombuet, Sir &oi«bt Cotton, John Sbldeh,
esq. Oliver St. John, esq. and Othen, for publishing a seditious and
scandalous Writing, 1S30 ---,-.-- 5S7
137. The Trial of Mbetdi Lord Ausltt, Earl rf CaitlbSavsii, for a Rape ttitd
Sodomy, 1631 402
13d. The Trial of Lawrence Fitz-fatbick aod Giles Bkoadwat, two Serranta
of the before- Kientioned Lord Audlby, Earl of CastlehaTCn. at the
King's-Bench, for a Rape and Sodomy, 1631 - - - - ' - 419
139. The Trial of Jambs Lord Uchiltrie, for Calumnies and dandemui
Speeches against James Marqqis of Haraihon, aniL the Earls of Had-
dington, Roxburgh, and Buccteugh ; tending to the sowing of Sedition
' betwixt his Mijesty and the said Noblemen ; at Edinburgh, 163 1 - 43<t
140. Proceedings in the Court of Chiralry, on an Appeal of High Treason :
by Donald Lord Rea, against Mr. David Ramsey, 1631 - - - 483
141. Proceedings in the Star- Chamber agunst Henky Shebfikld, esq. Re-
corder of Salisbury, for breaking a painted Glass-Window in the
ChuTchof St. Edmonds in the said City, 1632 - • • - 510
Hi. Proceedings against Wm. Prynn, esq. in the Star-Chamberi for writing
and publishing a Book intitled, " Histrio-mastix, or a Scourge for
" Stage-Players," &c. and also against Michael Sfarkes, for print-
ing, and against William Buckneb, for licensing the said Book, 1632-3 562
143. Proceedings in the Star-Cbamber against Sir Davis Fowlis, Sir Thomas^
LaYTon, and Henry Fowlis, esq. on a Charge of opposing the King's
Serricc, and traducing his Officers of State, 1633 .... J8G
144. The Trial of JoUn Lord Balherino, in Scotland, for a Libel, 1634 - 591
-.145. Proceedings in the Star-Chamber against Dr. John BASTtncK* Mr.
Hbnby Burton, and William Prvhn, esq. for several libels, 16S7 - *1 1
146. Proceedings in th<! Star-Chamber against Dr. John Williams, Bishop of
Lincoln, for publishing false News and Tales to the Scandal of' his
Majesty's Government; for revealing Counsels of State contrary to
fais Oath of a Mvy ConoMOor ; and Sk tamperiflg with the King's
Witoesses, 1637 [Ni] - - ■ . . -'. - - - 770
;.,yGoOglc
TABLE OF CONTENTS.
Page
147. ProceeAi^ in Uk Case vS Sbip-Homby, between tke Kixo sud John
Hamfdsn, eiq. in the Ezcheqaer, 1637 --•-.. 820
The First Writ for Ship Money - 830
The King'sJ^tter to the Jodges ...... g42
The Answer of ^e Judges ....... g^
The King, vermu John Hampden, in the Caae of Ship Money . 846
The Fim Day's Argument of Mr. St. John, on behalf of Mr.
Hampden, before all the Judges in the Exchequer Chamber - 850
The Second Day's Argument of Mr. St. John .... gog
The First Day's Argument of Sir Edward Littleton, knt. his
Majesty's Solicitor General, on behalf of his Majesty . . Q23
HieSecondDay's Argument of Sir Edward Uttleton ... g30
The Hitfd pay's Argument of Sir Edward Uttleton - - - 952
The First Day's Argument of Mr. Holbome on behalf Mr. Hampden 063
The Second Day's Argument of Mr. Holbome - - - - 1)76
The Third Day's Argument of Mr. Holborne - . ' . . . 989
The Fourth Day's Argument of Mr. Holb<Hiie .... loOO
The First Day's Argument of Sir John Banks, knt. his Majesty's
Attorney General, on behalf of his Majesty .... joii
The Second Day's Argument of Sir John Builu .... ioS2
Tlie Third Day's Argument of Sir John Banks .... io51
. The Argument of Sir Francis Weston, one of the Barons of the
Exchequer . ^ ------. . io6i
Tlie Argument of Sir Edward Crawley, knt. one of the Justices of
ihe Court of Common Pleas - - -. - - - . . I07t>
The Argament of Sir Robert Berkley, one of the Justice's of the
Court of King's Bench 1037
The Opinion of Sir George Vemon, one of the Justices of the Court
of Common Pleas ........ ]I25
A few Notes of the Argument of Sir Thomas Trevor, one of the
Barons of the Court of Exchequer - - - - - - 1125
The Argument of Sir George Crooke, one of the Justices of the
Court of King's Bench - - - - - - --1127
The Argument of Sir George Crooke, as it was presented to the
King U40
The Argument of Sir William JoaeSf one of the Justices of the
Court of King's Bench - - • - - - - -1181
The Argument of Sir Richard Hutton, one of the Justices of the
Court of Common Pleas ' . 1191
Ihe Opinion of Sr John Denham, one of the Barons of the
Exchequer .......... 1201
Google
TABLE Ot CONTENTS.
'He Argument of Sir Humphry DxTenport, Lord Chief Baron
of the Exchequer - - -- ... . . 1202
Tlie Argument of Sir John Finch, Lord Chief Juitice of the Court
of Common Pleas - .._-... ijit
The Argument of Sir John Brampston, Lord Chief Justice of the
Court of King's Bench 124S
Copy of the Order as it was drawn upon the Motion of Mr. Attor-
ney General - - - - - - • - -1251
Copy of the Judgment, as it is entered upon record - - - 1252
Proceedings in Parliament thereon ------ 1254
Impeachment of Sir Robert Berkley, and the other Judges who
gare their Opinions in the Case of Ship Money ... 1293
148. The Trial of John Lilburn and John Whakton, for Printing and Pub-
lishing Seditious Books. IntheStar-Cbamber, 1637 - - - - UlS
U9. The Trial of Thomas Habrison, Clerk, at the King's-Bencb, for a Misde-
meanor in speaking reflecting Words of Judge Hutton, 1 6S8 - - 1370
Another Account of the above Trial from Tanner's mss. in the
Bodleian Library [N.] 1378
150. The Trial of Thomas Earl of Stbaffoed, Lord Lieutenant of Ireland, for
High Treason, 10*0 .- -1382
COBBETTS
COBBETT'S
COMPLETE COLLECTION
OP
State Trials.
127. Proceedings on the Habeas Corpus, brought by Sir Thomas
Darnel, Sir John Corbet, Sir Walter Earl, Sir John Hesening-
ham, and Sir Edmund Hampden, at the Kings-bench, in West-
minster-hall ; 3 Charles I. A. D. l627 ; 'I'ogether with the
Proceedings in Parliament^ relating to the Libertt of thk
Subject; a. d. 1638 and 1629-
7hE king bifiog deprived himteir of the proi-
pect of kIT pariiameatar^ Aids, by disaoWing
Ibe parlbmenc, and yei resolving to prosecute
the war; il was necossaiy to project all pos-
tiUe w*}9 and means of raising money ; Co
vhich end JeUers were sent lo c)ie Lords Lieu-
teoanttof the coumiei, Co retuni ibe names of
the peraons of ability, and what sums tbey could
ipare; and the CocnpCroIler of the king's
Hooaebold issued furta letters \a che king's
name, uader tbe privy leal, to lerenil peisona
tdunied for the Loan-money; some were rs-
w»ed 90t tome 15, and others lOl. and Com-
miaionecs were appointed with private iiuCruc-
tiDqs bow to bebave chemselves in this affair.
Mid divers lords of Che council were nppoinccd
10 repair into iheir counties to advance the
Loan *. CollecCorg were also appointed CD pay
mto the exchequer tlie sums receiveil, anil to
" " Sir Randolf Crew ibevting no zeal for
tbe advancement ofthe Loan was then removed
from fail place of Lord C bier- Justice, snd sir
Nicholas Hyde tuccreded in hii room: a per*
son who, for his parts and abiiitjea, was (bought
woithy of chat preferroent; yet neverchejeii
came to the same wtih a prejudice, coming in
tbe pUce af one so well-beloved and to sud-
denly removed." 1 Ruahwortb, 420.— CrnLc
(Cbariei) p. 5«. " Mem. upon Fridny the 10th
of Nov. sir Raniioir Crew, Chief Justice of the
Kii^a Bench, was diicliarged of that place, hy
writ under the greaf seal, rar some cause of dis-
pleasure conceited against faim; but for what,
w«i not generally Lnowa,"
TdL. III.
return the names of such as refused, or dis-
covered a disposition to delny che payment of
che aums impotcd. This assessiueiic of the
general Lonn did not pass currently with the
people, for divers persons refused to subscribe
or lend at the rate proposed; the non-sub-
icrHhen of high rank in all counties were bound
over by recognitaiices to tender their appear-
ance at tbe Council-board, and performed [ha
same accordingly, and direra of themconunitted
to prison: which caused great murmuring.
But amongst chose many gentlemen who were
imprisoned chrougbout England, for refusing
to lend upon the Commission uf Loans, onlj
five of them brought their IJabeas Corpus, viz.
sir Thomas Darnel, sir John Corbet, sir Walter
Earl, air John Heveninehain, and sir Edmund
Htimpden.
ARGUMENTS
tn>ON THE HABEAS CORPUS.
Sir TuoUAS Di.hnel his caie, Midi. 3 CaroU.
Banco Regis.
Sir Thomas Darnel, baronet, being imprison-
ed in the Fleet, by virtue of a warrant signed
by the Lintt's Aitorney General, upon il?e 3rd
af November, bj Serjeant Brarmiion, (lis as-
signed council, milTed ihejusticrsof the King's
Bench lo graut him a Writ of Habeas Corpus
cumcaaia ; directed to the Warden of the Fleet,
CO shew that court the cau-e uf liis imprison-
ment, that theteupoti they nilghc determine
whether his restraint were legal or illegal; and
il was granted hv the court returnable Xbundaj
fbUowmg Che 8tb of November.
3] STATE TRIA15, 3 Charles I. i627.~PrMeedh^onihe HabeaiCorpuir
On Thursday, tir Thomai Daniel ei^ectcd
Chnt t)i9 Writ should be returned, hut it was
deliived ; and it was moved thut ihe relum
should lie on Sntiii'day,jihe iOtb uf N«v%mb«r,
1rhil^h made atr Tbi>ma9'ihe fnore wniM in
saiiii; out an Alios u|>on liis Habeas Corpai.
On Saturdnj the Writ whs not returned, and
sir Tbomu DHrutl, relurnable upon Thursdaj
mornioit the 15tli of Nov. ; by virtue of whicti
Writ, ihe warden of the Fleet brings birTliomoi
Darnel to the King's Bencli, and relurneth as
follovreCli :
Executio iitiat Brevifpactt tn^ua^iup K:keditla
eiaf' huic brfof.
Ttiei
'EjioIIenricosLiloer
< douiini regis de le Fh
' regi certifico quod die'. ThopUB Darnel ba-
' runet' detenlus est in prisuua prxdict' aub
' custodia paep yirlufe cmusdarn . wHrrniiti duo-
f zaia die pnvttto cousiliu' raibi direct), ciyiu
' Ucor sequilgr in liis verbis, «il.
' Wljcrea* he'etofore tlie bod;r of sir Thomas
' Darnel luilli been committed (o jaur custody,
' (Jipse axp to fMoire you siiU to cmttinue him ;
' nnd to let you Elqoit tlj.it lie was and is com-
' milted by the sjiecial command of bis ma-
'jeslj, &c.'
El htc- at cauia deUntionis pradiel' Thema
Sen. Braattoa. M»y it please your lord-
•hip, 1 did out expect this cauie at this time,
neither did I hear of it until I came.iiow into
the llaJI ; Bfid tlieretbre I ihall nav humbly
•hew you whnt my disnt hath informed mc
Itiice my cwninf hither. I uiidertund by bioi
that he expected not hia couiingjo liiii place
(O day; tlie Writ by t>hidi he was brought
Igitlier was not moved for by him, but was pro-
cured witliout his privity: and teeing his case
f« so, and that he pcreeivet the cause of his.
(KHning, which before he Loew oot, his motion
to your lordship is, thut you would he pleased
to let him have tb« cppy of the return, aitd
uve him time to speuk unto it, and that this
Writ being not sent out by his procurement,
may not be hied.
Attorney General Heath. My lords, it is
true that this gentleman, sir Thomas Ehu-nel,
being impoioned in tlie Fleet, did h^retafare
move your lordships for a Habeas Corpus, &c.
pnd it was granted bim : and his mBJ«a[y being
piiadc aiujuaiuted thrreuith, wai very "^illuE
that he and all his people niiflit have fQ^
justice ; , ^d when ihey clfsira that which
•eeuu to accord with tlie rules of the Uw, the;
should have it. But it fell out to, thqt un'thp
inf wbeu the Writ should have been returued,
tlie Warden of the Fleet did not return it, as
it vias his duly (o have done ; he did fofhear
to do it upoti a comqiaadaieiit, because it was
. fonceived, Chen being live at tliat linre to'
appear, the Court would hare been straitened
fiir want of time : but I iinagiued that these
gentlemen who did dceire the Writ before,
should bare again been earnest to renew them,
which it seems they did lyit. Thia Habeas
£^rpits nat swt out by. Special command, be-
cttuse (tese gentl«aien gave out in speeches,
and in pSJ'ticular this gentleman. That tiie<f did
wonder why they should be hindered fram
Triari, aa^ what sbouf4 be die ceacofi their '
Writs were not retantedi nay, his majesty did
tell me, that they reported that the kioi^did
deny them the course of justice, and therefore
he commanded me to renew thcWrii, which I
did, and think I may do it ex officio.
Sir Tbo. Darnel. My lords, I knew not
until now, but that I was committed by Mr.
Aiiarruy'i Wsivanc onljr, and thereupon I did
desiiKH UabHS Corpu at the bar, which yuu
were pleased to grant me ; but nuw I under-
stand that my reotniint is by another meani,
nnd therefore I shnll crave leave to have some
lime to apeai to it. And as for the words
nlled);ed against me, as if 1 had spoken them,
J liumbly pray they may be no djsparaKemeDC
to my cause, for 1 do patientiy refer myself to
your grave censures, as being acciwcd of a bet
whereof I^m no ways guilty.
Ui/de (L. C. Justice.) Yiiu give a terrperata
and lair answer ; and now you may perceive
the uprij^t and sincere proceedings that have
been in this business. You did no sooner
[letitiun to have counsel assigaed you, but yon ■
lad it granted to yoa, for indeed we ceitnot
dcnv itj and I tnow not but that any counsel
might have moved for you, without having
beeii assigned for you, and yet have had no
blame; for it is the kmg's pleasure his laws
shiiuld tnke place and be executed, and ibere-
fure do we sit here. When you m(ide a, motion
for a IlabeoiiCorpuii, that was likewise granted;
Bliethcr tlie commitment be bv the king or
otiiers, this Court is a place where the king
doth sit in person, and we have power to eia-
mine it; and if it appears, that any man halh
iiljury or wrong by nil imprisonment, »b have
pciwcr to deliver end dlsctiaiTe him ; if other-
wise, he is to be remandetf by us to prison
Bfiain. Wow it seems jou are not ready to
speak to this return; irjou desire a further
day, we ouuht to gnint it.
&r T. liernel. Mylor^", Ibumhly desire it.
L. C- J- 1 know no cause why it should b«
Sen. BramloB. My lords, we shall deui«
the Wi'it may not be Sled, and tliat we ma^
bare a copy of the return.
All. Cea. ¥ou cnnnot deny t)ie filing of the
Writ, if ypu deiire io havt a Bopy of the returq.
Ji. C. j. Although you be remgnded at this
time [o prison, because you are not ready 10
spe^k to tlie return, »e c^n B4Jour|i ypu to a
new d»y upon the Writ, and so you inajr pt*.
Mn? yourself; but if you will not have tlifs
Died, iheiti must go out a new Ilubeas Corpus,
and tliereupoo niusi be another return.
Scij. Bramtioa. My lord, we denre some
time, that we may be advised nhetbei we niBl
proceed or AOt,
i] STATE TBIA13. 3 Chablbs I. ISai.-^ougla Ig Sr T. Dm-itel, mdoihert; [9
L C. J. Wib joa MilMKk ^unatf to ihe
^r r. Banul. My lord, [ desiro some time
In adiise of mj procemliiip : [ ha'e moved
Moj awa, ud ofered to retain lliein of my
cmukI ; but they refute me, nDd I can get
use to be of cowiaeL with me without yoiir
■ what couutel os-
lire ; fur do offence
an that shall advi^
LC.J. You shall hai
iptijoa will hitce or dt
mil Im nken against any b
fMiByour proceedings in law.
All, Gen. I will pass my word, they that
dfi idvise you, sboU beve no offence taken
■piiM tbeta for it ; and I shall give coasont
U id; way that you shall desire, eittwr tliut it
n>jbe£lrd, ortliat it may not befiledi fur if
TN liesire justice, you shaU hava it, and ibe
tii; nilJ not deny it; but if it shall be con-
ixmd, as it is rumoured, that there was a de-
Dial si justice on the king's part, yiiu must
bum that his majesty is very tender of that.
Aid lot the gentleman, now be is brought
hiber, i conceive, but yet I leave it to your
lurdtliip'i judgment, that the writ tnust be filed,
isd joa must cither deliver him, or pcinand
iim, or else it will be an escape ia llie waixjea
of tile Fleet.
Sir T. DarMl. I would not have it tfaouf^ht
dmlsboiild speak any thing BgaioM my prince,
■wl Ibr llioie trords I do deny them ; fur upon
Bj cwuctence tliey never came into my
lliiiuglit: perhaps you shall liud that they have
tecD spoken by some other, but not by imy
LC.J. Sir, you have made a fair answer,
■ad I doubt not but Mr. Aiteraey will make
tbelita relation of it.; you mova for the not
fliijof the Writ; if yuu refuse to have it
ft^wbarebyit should not be of record, you
naa hare do copy of it ;. Iiut if you will have
il filed jou shall have b copy of it, and furtiier
lime to speak to it; chuse whether of them
Strj, Branutoa. We desira to have tbe
ntnni read once more.
And it was read as before.
Strj. Bramtton. So at the writ may no
fltd, we will desire no «^y of the return.
L. C. J. Than the gentlemsa must return
Ucka^iu into the casto<^ of the Warden of
ibe Fleet j and therefore I aak you, whether
yM desire to come hither ^gaio uptm tliis Writ,.
N will jou have a new oi^e I
Sir T. Darnel. I desire your lordship that
Inay have time to coosiderof it.
il C. J. Then in God's name take. your,
tea tine to (bink of it.
Mich. 3 Car. Regis, No*. 3S„163r.
Sit John CoHHt, bert. sir Wattet Earl,
*ta Heveninghani, sir EAnnott Hampden,
Wghtl, were brought to the bar.
&7. BraBmtan. tHaj it pletteyour lorddiip
■tbear the return rntd, or slialll ofKDitr
LCJ. Utitbvread,
Keelitig. reeds the return, being tlic same
as that ol' sir 'P. Darnel.
Strj. Sraiatbrn. May it please your lord-
ship, I shall bumhW move upiMk this ratunt in
the behalf of tir John HeveniNglinin,withwbi}m
I am of counsel ; it is his petitiun, that he may
be bailed from bis impritoniiient : it was but in
n kir me to move that to a court at' law,
icbby law cannot be granted : and there-
: in lh» regard, that upon this return it will
be questioned, whether us tl lis return is made,
the gentleomit may be bailed or not? 1 shall
hutobly offer up to your lordship the case, and-
e reasons out of mine understand me. arisiiig
of the return itself, to satisfy yoor lordship
that these prisanera may',, and, as tlieir case it,
lusbt to be bailed by your lordship.
The exi:eption that I take Oi this return, is a*
veil to the matter and substance of tlia
etuni,asto the lutmnErodd Segal form [bercDf: .
he exception that 1 take [o the motter, is iit
several reelects.
That the return is too general, there is no
eufficient cause shewn in special or in gm^ral
of the commitment of this geatletnan-; and as
it is iiisutticient for the cause, so also in the
time of the first imprisonment : for howsoever
here doib appear a time upon the second war-
" from the lords of the council to detnio hinj
in prison,! yet by the return no time can
appear when he was first imprisoned^ tboogh it
be neceUBiy it should be shewn; and if that'
time appear not, there is no cause your lordship-
Ebould remand' him ; and comequenily he is to
bedelivered^
Touching the matter of the letunit whioli is .
the cause of bisilnprisonnieoi, it isexpreMed
to be' per fpeciale mnndDlUnf domini' regis:'
this ia too geDeml and uncertain, for that it it
not manifest what kind of command this was.
Touching the lepel fbrm of the return, it is.
not,' as it ought ti> lie, fully and'posiiiveiy thv
return of tiie keeper himse'lf only, but; it comes-
with a lignificamt, or praat, tlint he was com-
mitted ■ per speciale niandaium domini leilit,'
as appenreth by warrant from the lords of tba
council, not of the king' himself ; and that lit
not gnod in legal form.
FoT.therantierandaulistance of- the return,
good, because there ought to be •
llhat the sulject haih in this and such-like case
to obtain his liberty ; tliere are other Writs by'
which teen are delivered from lestraint, as
that De Homine Re^iUgiando, but extends not'
to thia cause, for it is porticolarlv excepted in' ■
ibebody of ibe Writ De Manucnptione, et ds-
.Caulione Adniittenda, but they- lie ia other
cases: but the Writ uf Habeas Corpus is the-
only means the subject hntb to obtain liil.
liberty, and the end uf this Writ is to return
the cause- of the inrprisonment, that it msy ba-
eiamined in this court, whether the pertiM'
oajht 10 bedischatged ornot ! but tbetoannoti
ibedmie upon this return: for the cause of the'
limpriMQment of this gentleaaa at bst.is to lar'
STATE TRIAIS, 3 Ciiakl» L imT .—Proceedagi on the Habea* Corput, [§
from appcariDB jiarticularlT bj it, that there is
no cBiue at afi eipress*U in K. — Thi* Writ re-
qalres that the cnuM of the imprisonment
■boulil be returned,' and if the cnoie be not tpc-
cially ceriified by it, jet should it at the least
be shewn in general, that it may nppear to the
judges oi' the court; audit must be expressed
so tar, ai (hat it ma^ appear tu be none ot
those causea furnhich bf Isw of the Linzdam
the subject mght not lo tie imprisoned ; and ii
ought to be expressed that it was by prtient'
taent or indictmeut, and nut upon petition or
BUgeestion made to the king and lords, vhich is
agamst the statute made in the 85 S.. S, c. 4.
43 E. 3, c. 3.
By the statute 35 E. S, c. 4. it is Ordained
and established, ' That no man from hencelarib
shall be taken b; petition or suggestion made
to the kill); or hi» council, bat by indictment or
course ot law;' and acconjinglyit nas enacted,
4S E. a, c. S. the title of which statute is,
' None ahull be pui to answer an accBsaiion
made to the king wjibiut present meat.' Then,
tny lord, it being so, althouEh (he caiue should
. not need to be eipresied in such manner as
that it mai spMar to be non« of these causes
mentioueti Iti tne statute, or else the subject by
this return toseth the benefit and aclvaniaEe of
these laws, which be their birih-right and inhe-
ritance; but in this return there is nn cause nt
all appearing of the first commitment, and
tfaerefore it ii plain, that there is no cause for
yoar loriiship to remand him ; but there is cause
JM should deliver him, since the writ ii to
ring ifae body and the cause ofthi
ineut before your lordship.
-But it maybe objected, that this _._ _.
H^.be IS Corpui dotfa not demand the cause of
the dm coaimitment, but of the detaining onlj;
and so tlic »rit is latiafied by the return ; ior
thiiogh it shew no ciiuse of tiM first fMmniic-
meiii, hut of delaining only, vet it declareth
a cause why the gentleman is detained in pri-
son 1 this is no answer, nor can give any salis-
Actiun ; for the reason why the cause is to be
returned, is for (he subject's liberty, that if it
shall a)ipeara good and sufficient cause to yattr
lord-
lordship, then to be reraanded ; if your la
■hip think and find it iasufficient, be is .to
This ii the end of this writ, and this .
^ipear to yuur lordship, unless the time of the
finl cooiDiitment be expressed in the return. '
know thai in some cases the time is nut mat
rial, as when the cause of the co^nmitmcnt
(and that so especially) relumed, as that the
tine is not material, it it enough to shew the
cause wilhnut the time, as after a conviction or
trial had by law ; but when it is in this manner,
tliHt tbe time is the matii'r itself: for intend
what cauw you will of tbe commitment, yea
tbouich for tbe bigliest cause uf treason, there
it no doubt but that upon tbe return thereof
tbe tine of it must appear ; for it being before
trial anil conviction had by law, it is but ao
■ccusatioit, and be that u only accuKd might
I7 law to be iM la baiL
Hot I beseech jonr lordship to abs^rve the
consequence of this cause.~ If tbe law be, that
upon this return this gentleman should be re-
manded, I will not ditpute whetheror no, a
man may be imprisoned before he be convicted
according to tlie law ; but if this return shall
be good, then his imprisonroent shall not con-
tinue on fbra time, but for ever; and the sub-
jects of this kingdom may be restrained of (heir
liberties perpetually, and by law there can be
no remedy lor ibe subject : and therefore this
retnrn cannot stand with tbe lawsof (he realm,
or that of Magna Charta ; nor with the statute
of 88 E. 3, c. 3. for if a man be not bailable
upon this return, tber cannot have tbe benefit
of these two laws, nhich arc the inheritance of
the subject. — If your lordship shall think this
to be a sufficient cause, thea it gueth to a pei^
peiual imprisonment of the subject: Ibr in all
those CBuies " hich mWy concern the king's sub-
jects, and are applicable to all times and cases,
oe are not to reflect ujinn tbe present time and
Eiremment, where justice and mercy flonett),
lit we are to look what may betide us in the
time to come, hereafter.
It must be agreed 00 all sides, that the time
of the first frommitment doth not appear in
this return ; but by a latter warrant from the
lords of the council, there is a time Indeed ex*
pressed Ibr the continuing of him in prison,
and that appears; but if this shall be a good
cause to rentand these gentlemen to prison, they
may lis there tliese seven yean longer, and se-
ven years after theoi,/iay, all the days of their
livas. And if they sue out a writ of Habeas
Corpus, it is but making a new warrsiit, and
they shall be remanded, and shall never have
the advantage of tbe laws which are the best .
inhtritance of everv subject. — And in E. 6, fol.
S6, the laws are called die great ioberitance of
Fiery Bul^ect, ahil tbe inheritance of inherily
ances, without which inheritance we have no
inheritance. These are the eiceptionj 1 desire
to offer up to your lurdsiiip touching the He-
turn, for the insufhcicncy of^llie cause returned,
and the defect of the time af the first commit-
ment, wliich should have been expressed.
I will not labour in objections till they be
made against me, in regard the Statute of
Westminster primo is so frequent in every
man's mouth, that at the common law those
men that were commitled in four cases were
not replevisable ; viz. thiise that were taken for
the death of a man, or the commandment of
the king, or his justices Ibr the forest. I
shall speak something to it, thongh J intend
not to spend much lime about it, fur it toucb-
etb not this case we have in qurttion.
For that is concerning a case of the common
law, when m«i are taken by the king's writs,
and not by word of mouth, and it shall be so
expounded, as Mr. Stamford, fill. 73, yet it is
nothing to [his case, for if fou will take ihe trna
meaning of that statute, it, extendi not at all
to this writ of Habeas Corpus ; for the words
are plain ■ they shall be replsviiable by the
wht/ thai is, by tlM writ ■ De bo-
9} STATE TRIALS, S Chajile* I. 1627.— ftrongAl ty Srr T. Darnel, and others. [lO
' niiw teple^Undo,' directed to the sheriff to
dtlncr liwrn, if they were bniUble : but tbit
CMC i> mtiove the ibertff, and he it not to b*
judgt is it, whetlier lb* cidsu of ibe cummit-
BWDt be Midicirat or not, m it appears in Fili-
Berben, • De bomine rrple^iando,' and msiiT
other {dare*, and not of tbe Terr words of llie
Matcte tbis is clear, for there be many otbpr
caoMs nmilioned, as the death of a niao, the
eommudmentoftbejusuce.&c. in whicb tbe
statute: smith, men are not replevisable. But
will a man conceive that the meaning is, that
ibey shall nut be bailed at all, hnt liie in per-
jwllml im^riionmeut t I think I (hall not netd
to aptiul time, in thai it is so plain ; let me but
make one inatancc.
' A man is taken de aorU hominu ; he is not
bailable bj writ, sailh this Stotnle ; that ij, by
die conmon writ :' there was a cotnmon wnt
ttv this caw, aral that was called de odh tl atia,
aia{ipearetb, Bracton, Coron, 34, This is the
writ intended by tbe staiote, which is a com-
mon writ, and not a special writ ; bnt, my
lewd, at this writ de odio el acta was before this
Kaloce, so it was aAerwards taken away by the
sunite of 38 E. 3, c. 9. Bat before that tta-
tott, this writ did lie in tbe ipecial case, as is
•hewn in Coke's 9th Repott, the podterer*!
Case ; and tbe end of ibis writ was, that tbe
lalgtct might not be too long detained in pri-
■m, as till tbe JDMices of Eyre discharged them.
So that the law intended not that a maa ahould
■iSer perpMnid imprisonment, for they were
Hry cuefi)! that men should not be kept too long
in prison, which is also a liberty of the subject ;
and, my lord, that this contt huh bailed upon
a mspidon of High-Treaioo, I wiU offer it to
jom lordship, when I shall shew jiau precedents
10 these cases of a commitment by llie privy-
etwoeil, or bj the king himself: but before I
nfe these precedents unto your lordship, of
which there be many, I shall by your lordship's ■
isTPSripeak a little to tbe next eicepCion, and
that is to the natter of the return which I find
* be ' per qieiuale mandauim domini r^s.'
Aad what ia that? It appears by this writ,
there may be suadry commands by tbe king;
we £nd a apecial command often in our books,
■ ia tbe BtatDta of Marl. cap. 8. ibey who were
aapriioned Kedbs,' shall not be delivered wilh-
on the qjecial eomntand of oar loid the king,
Aad sa in Br«cton, deAttiomlmi, the last chap-
ter, where it appears that the ki^s commaod-
Bent fior imprisonineDta is by special wni ; so
by writ again men are to be iMirered, for in
lb« case of Kedia' or Piit Rediti, ir it shall be
I by a Certiorari, that is by a special
?r parties. So that by ^^ ,
that by the Mng's commandment to imprison,
sad to ddirer in those cases, is understood this
writ, and so it may be in this case which we
hare beard.
And this return here is a special Mandatum;
it any be noderstood to be nnder some of tbe
kill's seala, 49 Ass. and ought to be ddirered ;
«a<r will joo make a diSeience betureen tbe
kini's command imder-liii fnO, and bia com-
mand by word of mouth? What diSetvoce
tlwie is, I leave it to your I ordabip'n judgment i
bnt if there be any, it is the mure mairnal that
it bhould be expressed what manner of com-
mand it was, whit^h duth not hf re appear ; and
tberefure it may be the kiug's cummand by
writ, or his command under bis seal, or his
commnnd by word uf mouih alone.
And if there is any of-tbeic commands of an
higher nature than tbe other, doubtless, it is
itet by writ, or under seal, Tor they are of re-
cord, aud in these the perwin may be bailed,
and why not in thisP As to tlie legal form,
admiiiing there were substances in tbe re-
turn, yet there wants legal fonn ; for the
writ of Habeas Corpus is the commnndmeiit of
the king to the keeper of the prisons, and
thereupon they are to make return biitb ul' tbe
body, and of the cause of the cummiinient, and
tbut cause is to appear of them wl|0 are tbe
immediate i^cers. And if he doth it hy signi-
fication Irom another, that return is defective
in law, and therefore this return cannot be
good, for it must be from the officer himself;
and if tbe cause returned by him be good, it
binds the prisoners,
The warrant of the lords was but a direction
for him ; 'he might have made his. return to
have been expressly hy the king's command-
nMnt, there was warrant for it, 1 shnll not need
to put you cases of it ; for it is not enough that
he returns that lie was certified that the com-
mitment was'by tbe king's command, but be
must of himself return this fact as it was done.
And naw,mylord, I shall offer to your lord-
ship precedents of divers kinds, upon cummit-
ments by the special command of the king, and
upon commitmeots fakitb by tbe king and the
lords together. And howsoever I conceive,
which I submit to your lordship, that our caae
wilt tiDt stand upon precedemi, but upon the
fund a mental taws and statutes of this realm;
and though the precedents look the one way or
the other, they are to be brought back uuto
the laws by which the kingdum is governed.
In tbe 1st of Hen, B, Rot. Pari. 9, one Har-
rison was commiired to the Marslialsea by the
command of the king; and b^iig reolnved by
H. Corpus into the court, the cause returned
was, that he was committed ' per mandatum
' domioi refis,' and be was bailed.
In the 40 Eliz. Thomas Wenden was com-
mitted to the gatehouse by the commandment
of tbe queen, and the lords of tbe catmcit : and
being removed by an H. Corpus, upon the ge-
nptol return he was baited.— In 8 Jac., one
Csiar was committed by the king's command-
ment^ and ihis being returned upoo bis H, Cor-
pus, upon the eiammation of this case it doth
riear thnt it was over-ruled, that the return
uld he amended, or el*« the prisoner should
be delivered.
The precedents concemiiu the commitomit
by the Lords of the Council, are in effiect the
same with these where the commitment is, by
the reason why the causa of the coouaitment
should.not be shewn, holds in both caaes, and
11} CTATETRIALS, SCkaklesI. 1927.— Pr«aediigi<mtke HabeiuCorpn, [IS
tbU i»tlM ntceuily of Miit; aai ib«reibre Mr.
Staiofotd makes iht cataxtmad of th« king, himI
thu orth«k>r<l*oribefrit;r^c«4HiEil, to babocL
Bi on< ; aa4 tolhis purpoaa, if Ihejr speak, ha
Bpeaki; and if he apeikf, tbey ipaalk
The precedents tbut we can sLew jou, bow
tbe subject haib lieen delivertd upoD commit-
ment by tbe lords of [hecoaDcil.ao i»tbe tkMi
of Hen. 8y and in the tinei of i^eii Eiix,, aid
queen Mnry^are infitute ; a» in ibe Bth 'EKi.
Thomas LawreBce WIS coBuniUe4 to the Tewcr
bT the lords of ihe council, and baibd upon aa
H. Corpus.
In the 43 Eliz., Calvia's cMe. In the 9d
Eln., Vemon'f cue. These wera committad
for Hig> TreasoD, and yet bailed ; for in kU
these cases there must tie a coovictioa in due
tjose, er « dellverauce hy Un,
There be divers other preeed«nts that inkbt
be shewn la your lordship. In 13 Jac., bfilei
Benards. In 13 Jac., liot. 155, Rd. Beckwitb's
nose. In 4 Jac, air Thocnae Moason waa oaia-
skied for treason to the Tower of Loodoa.and
afterwards was broi^ht hither, and bailed ; and
tine* aur case staoda upon ibis return, and yet
there is no sufficient cause in law Mfiteeeed in
the return oftfaeiietsitiing tliisgemleiBani and
since titesa precedents do tnurant our pro-
js ; iity hiunble suk to this court is, tliat
> gentleniiui, sir Johti Heveniagbam, who
hath petitioned his inajesly, tliat lie loayhave
the benefit of the Inw, and his majesty hath
signilicd it: it is bis pleasure thtit justice ac-
cordiag l« th« law shoitld be administered at
all times in general to nil his subjects: and
partieulariy tu these eeutlemen, which is tbeir
Wth-right : ny huinhle<saiL to your lordship is
that these gentlemeii may have the benelit of
that law, and bo delitered from their impriaon-
Mr, Noye's Argutnent of Counsel with sir
WiOur Eiirl at that time.
May it please your lordship, I am of coun-
sel with sir Walter Eurt, one of the prisoners
at the bar : the return of this writ is as those
(liat have been before, they arc much of one
tenour, and a% you have henri tbe tenour of
that, so this gentleman coming hither by an
II. Curpus^I will by your lordship's &Tour read
the writ:
■ Carotaa, Dei gratia, &c. Johanni IJloe
'miiit' Guiirdian' prison' nostra de le Fleet
' salut*, Frzcipimui tibi ijuod corpus Wslteri
' &irl miLt' in prison' nostra anb custodia tua
' deCoiC' ut dicit' una cum i-ansa detentionii sua
* < qaocunqiie nomiaa pradict' Walter* censeai
' in eadtm HabeaV Corpus, ad Hibjiciendum let
• recipiendum ea quEs curia nostra de eo adunc
' etibideB ordiu' conting' in bac parte et hoic
' DuUatenns omit' periculo incumbend* et ha-
* b«BS ibi hoc brere. Test' Hyde', apod West-
< minsMr, qiiartodie Nor., anns 8.' ' Eiecu-
' tio istius Brevia patet in ^hm
< bac bran luutciM.!
'E^o JohBoaesLiloe Mir Guardian' Prison'
' domini Kegisde le Fleet, serenissiioo dotaino
' ragi, Bpud Westminster 8. Fust receptioneni
' bnltn brevis cfiod in hac scliedula est weif-
' tiooat', Cartifico quod Walter £uil railes, in
' eoden breviuin nominat' deteutus est in pri-
' loaa de le Fleet sub custodia mca pradicli*
' per spceiale mandaiuiu ilomini regii luiLi s^
' uificaiun per WarrniitutD dnorum etaliunim
' de Privato Coiicilio perbonorabili«Biiai dicti
' domiii reps) cujus quideai tenor seyntur in
' bac verba,'
Whereas sir Walter Earl, knight, was here-
tofore committed to yi>ur cottody, iheae are to
will and require you still to deiaiu hia, letting
you know, that l>utb his first couuniUixnt, ana
this direction for the continuance of him in jtri'
son, were and are by bis majesty'i special cum-
mandznent. From Whitelnll, 7 Noveuibrii,
ie9T.ThoniasCoveniTy,C.S.,nenry Mancbec
ter, Thomas SuSolk, Br]d^» ater, Krily, R. Du-
nelin', I'homas Edinunria, John Coo)i, Marlbo-
rough, Pembroke, Salisbury, Totness, Gmndi-
son, Guliel' Bath and Wells, Uoheri Nanlon,
Richard Weston, Humphry Mayes.
To the Guardian of tbe Fleet or bis Depoly.
' Et hssc est causa deteutioais predict' WbI~
' lari Earl sub custodia mea in priseu pnedtct'.
' Attamen corpus ejusdem Wiilteri ciirata do-
' mino rage ad dieai ct iooum pvodiclum, post
' Feceptionem brevis pnwticlT parat' luibeo
' prouC iHud breve in be en^et et vequitet.''
My LoTi^ the first Habeas Corpus bears dM«
the 4ih of Nov., tlien there is an Alias HabeM-
bears Testa after (hat, and the wsour th««of
is a cvniinBBd ta the warden of the Fleet,
' quod HabeasCorpus Waiteri Eed,coram nubi^
' od subjicieodura et recipiendtun en qua! curia,
' nostra de eo, &c, ordin' floatinj^.' Aiid iha
Wanlen of the Fleet, be oertt6es as your lord-
^ip haa heard. May it please your lopdship,
I desire as belbrevws detuvd fopthe other geu-
tlewen,thatstrWBlterEarLmayheaiK) batled,
if ihera be no other cause of bi» itnptisonnlent :
for if there tvera acause certified, aud that g>«m
irere not tufficieui to detain him Mill in pnsoa,
yuur lordship would buil him ; and if a mai»
should be in a worse case, when there is no
cause certified at all, tliat wotild be very liard.
Tbe writ is, that he sliould bring the prisoocp
coram nobk, belbre liie kin^, the end ol' thait ia
' ad subjicieadum et recipieailuni ;' now 1 con^
cetve, that thou^l [here lie aiignifieation oTtlw
king's pleasure to have this g^ntjeiuan impri-
soned, yet Hheo the king grantj this »rit to
brioB me prisoner hither, ' ad sutjiaieadum et
■ redpieaduai,' his pleaaune lihewisa is, to hav«
the prisoner let go, if bj law he be not cliaif*-
able ; or otherwise t« ileiaiB him Hill in piiiM^
if iIh IMS w> le^Htre it,
Goo;;lc
13] STATB TWMUS, 8 Cukkm J. l«<7v-r^n)i«b IgiSirT. Hantt, ad eOen. [14
ttMK h« ii
I win pot jour luntiliip in miiMl oT « me,
watd it ou P«ich. 9 Ed«. 3, M. 3. I will eke
li)' d« Plucita, bcciuM mj book w net paced
K ottwr boots are ; it ii in the mm «f ■ Cm-
Mzi(. In that r>ke there were two thins coa-
lidrrdile : tli« one that tliere was a 5i|;iiiicMioD
of the kiii)c'i pleasure past, and that detennintd
with h'm : ilie other, that though (here win n
significiiuon of the king'* pleasure before, yet
there ruinr* after that a writ ; and tlial was
another ujcDificaMnn of the kmg'« pleBsiuv, <hat
■he prisoner shaU be brought liitber nil tuHifi-
mdtm, to lubtnit himself to puiiv<hni«nt, i< be
h>ic deserred it ; m md recipiendttm, to rer
reive fait enlac^rlDant, find be dditered, if there
be DO came iil bis iiii prison tntnt.
Aad if upoD ail Habeas Corpus, a cause of
CnmmitiRent be cenified, that cuate is to be
Bied bere befare jonr lurdihip. But if no
caute be iliewn, tben the proceedinfs musl be
' ut mria nostra ad raat' concieerit,* the court
do that nhichsianils with law and justice,
a dt1.v<
tij lord, I shall be bold to nove one wotd
more (ourhing ibtt Herimi: I conceive that
every officer to a court of juslice nuM make
his rFtnm of hii own act, or <if (he act of ano-
ther, nnd not wtei he is certified i>f br another.
But ill this t»se (tie warden of t(K Fleet doth
Dot certify himself, of himjelf, th*t this gentle-
ta»a was commanded to him by the king, but
chat be was cenitied by the lords of the coud-
dl, that it wfts the king's pleasure that be should
detain bidi- But in our rase the warden of the
Fleet mmt cettiFf the immedinte- cause, aod
Dot the cause of tb* cause, as he doth by this
Rlom ; ■ DetendiB est sub custodla mea per
' ipeciale maiidatnm Domini Vi.efJ9 mifai signi-
' tcalom per Wamntum duonim de Prttato
' Concilio ;' that ii not the use in law, but be
UD^l lo return the primary catis*, and not the
nbH^usnt csDse: as in 33 £dw. S. return,
Bex iicecom' ST. ie • writ De Hotnine Keple-
pando, against an abbot, dip sberiff return*,
rtm be hnih sent to the bailitF of ihe abbot,
and be itiiswered him, that the party ytp tlie
abbot's villain, and so be cinnot driver him ;
that it ii held an insufficient return, and a new
Aliatnas grwied. But if the sl^iiff had r*-
tnnied, that the abbot did cerlii} him to, it hod
been pMMj ; but he must not return whqt is
certified tiiin by another.
In one of (be precedent! that hath been
noted, as that of Parker, 33 H. B, there the
gaanfiaji i>f the prison certifies, that Parlcer
' dtteotos est tab cuatoriia mea ptr mandatum
' Domini Regis mihi iiunciatum per Hnbertum
' Pecke ■' now our case is by the nunciation of
many, but in faiw ' Majui et minus non Tariant
' m epecicin,' the certification of one and of
many is of the same eSeri, alihnugh in moral
soderstanding there may be a diRerence.
Trin. 9 E. 3, Hot. 40. in this court in 31 E.
'3, in the printed Book tliere is a piece of it :
ibe abbot of Bury beings a prohibiiioa out of
das court, the bishop nf Norwich pleaded in
■tvoftliM,* QiMKl'iqjbitatificatumquod con.
CBiad ; there were two i
id they ai
why he wa* eicomoioiiicaled ; there nay be
c««58i why he should be eicimmunicatcd, and
then be riionld be barred, and there may be
caiue* why tlie eicummuiiicBtion sbotild not
bar fatal : for it may be the excumoiunication
was for bringing tlie action, which wis lbs
king's writ; and ther«f(»« because then was
no cause of the eicommuuication returned, it
was ruled that it was not good. I'ha other
reason is that upon the Roll, which is mHu tu-
tifi^aiutn.
Now every man, when he will make a cer(i<
ficate to tbc court, ' Proprium factum toum
' non alterius significare debet,' ha mast infom
the court of tka immediate act done, and not
that such tbiags are told him, or that Micb
thikp arf signihtd unto hiat ; bnl that was not
done in this ca*e, and therefore it was held
inenCcieat, tuid so ia this case of our* I cod*
ceire the retom ii ioMifficient in the forai.
There is another cenie, my lord, for which I
conoeive ibis return is not cood.
But first I'will be bold to infbnri'yoar lord-
thin, touching At statute of AfagnaCharta Sff.
' Nullus liber bomoeapiatur vel iiapritonetur,
' &c. nee super eum mittimus ni^i per legate
' judicium pariam suorum, vel per legem teme.'
That in Ihii statute theie words in esrcerera
ai<e omitted out of ibe printed books : for it
sboald he 'nee eura in carcerem mittimus.'
Foe these words ' per leeem terre ;' what ' I)et
' teme' should be, 1 will not lake upon me to
expaund, otherwise than 1 find them to be ex*
pounded by acts of parliaroeut; and this is,
that they are utMlerstoud .lo be the proceu of
the taw, sometimes by writ, sotnetimes bj
attachmant nf the person : but whether,
' speeiale mandatam Domini Regis' be intend-
ed by that or no, I leave it to your lordship^a
expcsiiion upon two Pctitiona ot the commons,
and AiHwer el the king, in 34 £. 3, No. 0, aod
No. SO.
In the first of them the coromovs complain
that the Great Charter, theChartar of the Forest,
and other italutes were brokeu, and ibey de-
sire tbat far the lood af faimeelfand of bis peo-
ple, they might be kept and put in execution,
and tbat tbey niightnoCbeinrringed by tuaking
im arrest by special eomisand, or otherwise :
and the answer was, that the assent of the
lords established and ordained, that the said
charter apd ether statute* sfiauld be put in aie-
ct)tTO(i atxordlng to the pcriiion, and that is
without any 'disturbance by arrest by special
comraand or Mbern ise ; for it was granled, as
it was petkiened.
In the same year, for they were very careM
of,tbis matter and it wa* necenary it shoold be
so, for it was then an usual thing to take men
by writs ' quibusdom de causis,' aad many af
these words . . .- .
ibewD ; and I My ia the it
15] STATE TRIAI£, S Charlbs I. 1637.
jifaified that men wm impnsoaed bj special
Goiamaiid, and wiltiout indictmeDt er otber
lef!,iil course uf luw, nnd tbnr desired that ibiop;
tauyant be doue uprin men by S|jecial conummd
■gBiiiM tbe Great Charter.
The kinji mnkci uiswet, that he is well
pleiued [herewih : ttiat wan [he 6nt Bii^wer ;
and for the Tuture be liach adiled farther, if anj
inaiibeK>')e>ed,let him coinpIaii>,and right shall
be doaeuuui liim. Tiiis, <iiv lord, isanexplana-
tiaii oTtiie Great Chnrrer, ss also the statuir of
ST Ed. 3, c. 18 ia a comrueniaij upon it, that
mcD would 001 be committed upon suggestion
made to the king, without due pro 'fs of biw
agHin them, and »u it is enacted twice in one
-fTMeediagim the Babeat Corpm, [18
year.
We 6iid more printed 'book*, at in Hen. 6,
Hnu de fiacts, titz. 18S. ubirh i« a strong
Ciise, under favour, in an action of tr-^ass for
cuitiDK dnwii ' tree*. Tbe defi.ndaii[ tait^,
tee, and that the king did cuniinaiid him ti> cut
them-: and rlie opiuiim of the court whs, that
this was no c<iod plea, without shewing tlie
spc^^ltjr of the command; aud tbey said, if
tiie kio^ commnnd me to aiTest a nun, wtd I
arrest him, hi: ajiHll have an action of fatie im-
priaonnieni against me, altliuugb it were doite
in the king's presence.
In 1 Jul), cap. 7, fut. 46, it is in prbt, and
there »e leave it.
Hinscj, Chief Justice saitb, that air John
Harkliam told king Edw. 4, that he could not
arrest a man upon EUipicion of frlony or tfca-
•on, ag any of his subjeciB might; btcause if
he should wrong a mau by such arrest, the
parlies could have no remedy acainst bim, if
any man shall stand upon it. Here is a signi-
fication uf the king's pleasure, not to have <he
cauM of tbe cuauaitment examined; he hath
here another signification of his pleasure hj
writ, whereby the party is brought hither ' ad
* subjiciendum et recipiendum,' that iie haifa
made ^our lordship ju<^e of that,' which should
be objected aguinst this gemleman, and either
to punish him, or U> deliver bim ; and if there
be oo cause shewn, it is to be intended that
the party is to be delivered, and that it is the
king^a pleasure it: should be so i and the writ a
a sufficient warrant lor tbe <doinz cif it, there
being no cause shewn of the imprisonment.
And now, my lord, 1 will speak a word to the
writ of de komme repUgundo, and no other
writ, for that was the common writ; and the
four causes expressed in that statute, to wit,
the death of a man, the command of the king,
or his jusiice, or forest, were excepted in that
writ before that statute mode, at appears
Bracton 133, so that tbe writ wai at tbe com-
mon-law before that statute.
And it tppears by our Books, that if a man
be hrouEht hither by an Uabeaa Corpus, though
he were imprisoned de mortt ionUnit, as io the
31 £dw. 4, r. WiackGeld was bailed hare, this
court bailed faim, for be was brought hither
' ad subjici«iiduiii et recipieiiduiD/ uid not to
lie in prison God knows how lung; and if the
statute should be eipouniled otl.eritise, there
were no bailing men outlawed, or bitakets of
prison, fur they are nut within this iiiaiute, and
yei this court doth it at pltasnrc.
But plainly by tbe statute iiaelf, it appears,
that it meant only tfau comuion writ; lur tbe
preamble recites, tlint the thirifft uud otheta
had taiien and kt'pt in prison peisoos detected
of ti'lony, and Irt uut to plevin such as nece
not repruable, to gr>eve Uie one pavty, and to
the gain of tlie other ; and tnrasmuch as before
this liiiie it was oot determined ithat prisoners
were reprisable, nnd what not, but only in oer-
tain cases were expressed, tfaetetore it is o^
doined, S:c.
Now this is DO more than for direction to the
keepers of the prisou»,'tbr it leaves the msLter
tu tbe discretion of tlie juditet, whether bail-
able or not ; tor viliea the statute hath declared
«lio are rCplei'iuUe, who are nor, as iiieo out-
lawed, thuse who have abjured the realm,
breakers of prison, burners <if hnuses, makers
01 false money, couDterleiting 'if tlie king's seal,
Biidtbehke; it is tbeo ordained, that if the
ibeiilf, or any oiber, let any pi at. large by
suritj, that is not teprisable, wht'ther he be
tlieritt, constable, or any other that hutb the
keeping of prisooi, and iliere»rbe attainted, he
shall lone his olbo; aiid fee for ecer ; ao iliat it
extends to the common gaulers end keepers of
Erisons, to direct them in ftbal cases they shall
It men to bail, and in what ca&ea nut; and
that they shall not be Judges whom to let to
replevin, and wiiom to keep in prison ; but it
extends not to the judges, lor if the makers of
the statute had meant tliem in it, liiey should
have put a pain or penalty upon tliem also.
So then I conclude, under jour lordJiip's fa-
vour, that as thiN case is, there shouhl have
been a cause of the commitment eijiressed, for
these gentlemen are lirooithl liilber by writ erf
JKyicienduM, if ihey be charged; and adreci-
funium, if they be not charged ; and tlierefore
in regard there is no chin^e against then),
whereupon they should be deiained in prison
any lunger, we desire that they may be bailed
or di charged by your lordship.
Mr. Seldem'i Aigument at the King's-bencb
bar the same day.
My Lords ; I am of counsel with sir Edm.
Hampden ; his case is the same with the ottier
two gentlemen ; I cannot hope tu say much,
after that tliat hatli been said ; yet if it shall
please your lordship, 1 shall remember yuu of
so much as is b«fallen my lot. Sir Edmund
Hampden ii t rought hither by a writ of Dabeaa
Corpus, and the keeper'of the Gntfhou^c hath
returned upon the writ, that sir Edm. Ilanip-
den is detained in prison ■pertpeci^ie num-
' datum domini regis, mibi significatum per
' warniDium duorum privnii concilii dictl do-
* mini regis.' And then he recites the war-
rant of the lords of the council, which is, that
they do will and require him to detain this gen-
tt«iuii »uU io pitoR, letling ioa koow Utu
17] STATE TRIALS, 3 CuiiW L lS(a.—inughi bsSirT. Damel, and othat. [IS
mentioned and fullt «xpmsed : je\ I will idd
btUe to thmt whidi hath heta taid.
llie statute of Mogna Charta, cap. 89, that
Ui Ent impriaoDinent, Ace. May it platie
jMT lonhb^, I ilwll haioblj tnoie jou that
(hn gcnlhniBn ma; also be bailed ; for undrr
hmat, mj lord, tban ia no cauw id the return,
^j he tbould be an; (hnh«r iniptiMii«d and
-rMtniaed oF bi* libcrttf.
Mj Imd, I thall taj lomething to the form
■af Ihi nit ; and of ine return ; but lerj little
tDifaon both, became there is a Tcrj little left
Atm to ttf.
Uj laid, to ibe fium, I laj it eipreweth no-
AJBI of the fiist capnoo, and therefore it is io-
iJiciml ; I will add one reason, as hath been
wU: tbe Habeas Corpna hath onl; these
«enfa, 'qnod habeas corpus cji» nna cum
'cnm detentioois, -et nea capiionis.' Buc,
aij loni, bccaoie in all itnprigonments, (here ia
■ cnn of cBpUoD aod detentiod, the caption
ii to be azawend aa-well u the detention. I
hne Nen mar^ writs of thii nature, aod on
tbnn the caption ig retorned, that tbejr might
Mt ihe ttne of the captioD, end ihereb* know
vbetber the partj ihoald be deliverM or no,
nd that ID rrgard of tbe length of . bit impri-
TU next exeeptian I Uke to tbe form ii,
4kt there i* macD nnceitainty in it, to (bat no
«an can icU when the writ came to the keeper
«f the fmoa, whether bqfon the retsm or
tr ; for it appears not when the king's com'
a for the
the signifi'
1^ or the «i)
I him. It is
blfj'"eiewi'i
be, everj man would i
ibao he doth. The law taith expreMl
would enjo^ his libert* I
The law taith expressly,
freeman shalLbe imprisoned without dui
tMAappeare
Ttliof NaTember; bat nliKi it came to the
keeper of tbe prison, that amsean
Md tbereibre, ai for want ot mentkining the
Mas tine of the caption, so fer-not exprnsing
^faeome time when this warrant came, I think
dierrtam is bult; ia (brm, and void.
Aad for apparent contradiction alio, loe re.
nn ii ioaufficiait ; for in that paA of the re-
tara which is before the warmnt, it is mid,
' Qood deteotiia est per ipeciele mnndatum do-
' aiai regii.' The warrani of the lords of the
CMndl, the ver* srllabtei of that wamnt are,
■hat the lords nf ttie council do will and re-
^niektm Kid to detain him, which is contrary
B the first part of the r«nrn. — Besides, my
lord, the lord) themsriTes say, in annihrr place
aadfBBase of the n&rniat, that the king eom-
sMded ihem to commit him, and so it is their
. <otDaitment; so that upon the whole matter,
tksR appear* to be a clwcontnuliction ia the
istnn ; and diere being a pontradictiou in the
retam, it is void.
N«w, my lord, I will speak a word or two to
tW EMttcr of the return ; and that is tooehiiig
: aiai admitting
of any, ot eitb«r, or both of thete to be the re-
tea; I think that Iff ihe constant and Bfttled
In* of tbit kingdom, withotit which we have
•otkiBg, ao man can be Justly imprisoned by
nbtr at ibeil], without a cause of the commit-
MK npreenid in tlie return. My lord, in
huh tbe last argtuoenta tlM ttatirtas W* bevn
of the law;' outoftherer; hodj of thi»
act of parliament, besides the explanation of
other statute^ it appears, ' Nullus liber homo
' capiaturvelimpruonaturniiiper te$;em terr«.'
My lord, I know these words ' le^m tprrE,*
do leave the question where it was, if tbe inter-
pretation of the statute were not. But I think
under your lordship's lavonr, there it must be
intended by due course of law, to be either bj
presentment or by iodiciment.
My lords, if tlie meaning of these worja,
' per letem terrc,' were but, as we use to say,
according to the laws, which leares the matter
TCry uncertain ; and ' per spedale mandatum,'
&c. be within riiemeaiiingof these words, 'ac-
cording to the law ;' then this act had done no-
thing, Tbe act is, ' Ko freeman shall be im-
' prhoned but by the law of the land.' If joa
will nndentand these words,' per legem terra,*
in the first sense, thii statate shall extend to ,
riltains as well as to freeinen ; for if I imprison
another man's rillaJn, the rillain may have an
action «f false imprisonment. But the Idtdl
and the king, foi then they both had villalna,
might imprison them ; and ihe villain could
have no remedy. But these words in the sta-
tute, ' par legem tern,' were to the freeman,
which ought not to be imprisoned, but by du*
process of law : atid unless the intrrprelation
shall he this, tbe freeman ahnll hnre no privi-,
'lege above the villain.
So that I conceive, my lords, these words,
per .legem terra:,' must be here so interpreted,
s in 48 F.lii. The bill is worth observing. It
reciteth that divers persons without any writ
or pnwtntment were cast into prison, &c. that
ight be enacted, that it should not be so
> liereafler. The answer there ii, that as
is an article of the Great Chatter, this
should be granted. So that It seems the tie-
tnte is not taken to be an explanation of that
of Magnn Charta, but the i-ery words of the
atstute of NTagna Charta.
I will conclude with a little observation upon
these words, ' nee loper eum mittimus ;' which
words of themselres iignify not so much, a man
cannot find any fit sen?e tor them. But, my
lord, in the Ttli king John, there was a Great
Charter, by which this statute in the 9th H. S,
whereby we are now regulnted, was framed,
and there the words are, ' nee earn in carcerem
' niittimas.' We n-ill not commit him to pri-
son 1 that b, tbe kiug himself will not ; and to
justify this, there is a story of that time ia
Matthew Paris, and in that Book tl^s Charter
of king John is set down at large, which book
is very authentic, and tliere it it entered : and
in the 9th of Hen. 3, be saith, that the itatute
Wat renewed in tlie tame words with the Char-
ter of kii^ JobB. And, mj hnf, be mi^
19] STATE TRIALS, 3 Chables I. 1697.— Proandiiigt on the Habeat Corfia, [M
be doth
know it beiti?r than otiiers, for he was rhe Ii
Chronologej in thoje times : ami therefore, raj
lord, lince there be io mniiy reasona, and sc
inaijj precedent*, and so man; 5tDtutG«, ithtcl
declare, that qo freernaii whatsoever ought ic
be imprisoned but according (» the laws of tht
land ; and that the Lihertj of the Suhject is
the liighest iuhcciiiuice Chat he faaih ; my hum-
>ilc re<|ue£t i<, thai KCcordint; to ihe ancient
luMS and privileges of this realni, this geiitle-
niiin, tny client, m«y be bailed.
The AiiciTMENT of Mr. Caltueop, at the
KiDgVBentb bar, 33 Nov. Midi, 3 Ci
regis.
Sift John Ciirbet being brought to the
King's-Bench bar, with tir Edmund Hampden,
■ir Waher Earl, and sir John Heveninghatn,
nho were tilsu brought thitlier by serenil wiiis
of H.iheai Corpus, witli the saine return ; I
being astigneA by the court of King's-Bench,
upon a petition dehvercd, tobeuf cnnnsel uith
tir John Corbet, did move that sir John Corbet
might be discharpi'd of his Imprisonment, aad
put in bail; fur 1 did concejie that tho return
of this 11. Corpus wat iusitlhcienc, botii in the
mailer of Ihe return, nnd in (he manner of the
return, and su thvrenngbc Dot to he a longer
detaining of sir John Corttct in prisun. For as
to tliu manner of the return, it is not laid down
precisely, iliiit sir John Corbet is detained in
Eriiion by ttic speciid comnmnduieiic uf the
iug, signified by ihe warrant of tlie lords of
the council ; tlie which is not a direct aSirma-
tioD that lie is detained by the special rommand
of the king, but that the lords of the council,
by their warrant, have signified unto him that
he was commiilcd and still detained by the
special oommand of tb* king.
And liomsoever ihc lords of the council had
signified that he was detained by the commatidi-
ment of the king, yet it may be be was not de-
tained by the coniuiandment of the king ; for
iheir si|{nilicati'un of the same by warrant may
be untrue, and ilie warrant of tlie lords of the
council that is returned in Am: iiirhi, impnrteth
that the keeper of the Gatehouse rather tonk
upon him to return, tliat it was tignilled unto
hiiu b^ the warrant of the lords of the council,
that sir John Corbet was commilted and de-
tained by the tpecial commandment of tlie
king; because il the keeper had taken upon
bin) to affirm it upon his return, then needed
lie not Co have returned the warrant of the
lord* nf the council : and the warmnt itself
sheweth that he had only his information from
the lords uf tlie council. For ihvir warrant is
to let the keeper know, that both the first com-
mitmeiit, nnathis direction tor the cnutlnuiag
of him in priwo, were and are by his majesty's
soecial commandment ; and 1 do not see, as
this return is made, that an accord upon the
case can lie upon (he ketper of the Gntehouse,
if sir John tiirbei was iir)t commilted nor de-
tained by the special commandment of the
king, so lonK as the warrant ol* tli« lords of the
coiuicil be letorned as it was made, because
as the lignilicavic of
the Idrda by their warrant. Register 65, the
writ of Excommunicai' Capiend' gnetli, ' Rex
' vicecom' Linculn' S. signihcavit nob' vener«-
' bihs pater Henticus Liiicoliiiensis epiB(»po$
' per titfra* suas pnienies quod R. bdus par(T-
' chial' propter luam manifestam contuuuic'
' autboricaie ip-iius episc' ordin'excom' eit, nee
' se vult per censuram ecclenaiticsm justiiHar'
' &c. tibi pracipimus quod pnedict' R.percor-
* pus suum secundum consoetud' AngliK jus-
' tic' &c.' And yec no'.man will sav that there-
is an inforniaiioQ nf the king,'thaC R. iseicom-
nicnted. And iu Fill. Nat. Br. 663, and Re-
gister 65, it appears that the ibrm of the writ
of Eicolnmunicaliim deiiberand' is, ' ReiTice-
' com' Lonthtn saiut'. Cum Tbom' Jay allu-
' tar' London' qui nuper nd denuniiat. vener*-
' bil' patris archiep' Eborum pro contumaciii
' sois ratione contractus in civitaCe nostra Ebo-
' rum liabic' ut dicitbjit. tanqnam eiccim' ec
' claves ecclesiK con teamen I' per corp' sunin
' secundum cunstictud' Angliai per te justic'
' pnecepimus, donee &c. esset satishct' eid'
' archiepitcap. ad sniiifaciendum Deo eltanctK
' eccleane, audi cien tern expuault cantionem,
' per quod eidem arc liiepi scop ui offic. archi-
' disc, London, luutuie vicissitudin' obtantu
' tcripsit ut ipsum nhsolvat ab eicom' senten'
' nieniorata sicuC idem arrliicfiiscopus per lite-
' ms suHS pHtemes nob' significavit, libi pneci-
■ pimus quod prsd' Thorn, cura tibi constars
' poierit ipsum abeicoin' prsdicC' per predict'
' official' absolvi a prison' qua detinetur ai es
' occasione ct non alia detineet' in eadem sine
' dilalione ddiberari fac'.' And yet it caimot
be said, that ollhouEb <!ie king recited in his
writ ihat the archbishop hud signified unto him
that lie had written unto the official of the
archdeacon, cliat the king said, that the arch-
bishop had wrilten ; for he doth not affirm so
much precisely, but only referreth himself unto
the certificate uf the archbishop.
Ploirden 192. Buck I ^ and River's cnse, it
is put. That if a man will bring an action of
dtbc upon an obliifation, and declare that it
appears by the obligation that the defendant
stood bound to tbe plaintiff in SO', the which
he hatb nut paid, tliis declaration i< not good ;
insomuch as it is not nlledged by matter in
fact, that he was bound unto him in SO/, but
the deed is alledgcd'hy recital only, 91 Ed. 4,
43.
Plowden Com. 136 ic 143. Browning and
BeesCon's Case,
The Abbot of Wallham being appointed
collector of a Disme granted unto tbe king, in
discharge of liiiuself, in the Eichequer, plead-
eCh, ' Quo inter reconiat' Ter. Pasc. anno ]5.
' riomini Regis Edwardi 1 inter aha continetur
' quod K. 3.' had granted unto the piedecesson
of the said Ahhot, that he nor any of his suc-
cessors should he any collectors of any disme*
to he ttranted afterwards, and it waa adjudgtd
that this pies was iU,
«] STATE TRIALS, aCHAw-Eal. 1627 — brought by Sir T. Damd, and oihcn. [«
de ClifTordVlnn ;' tind upon hi? return, John
'nrker was bHilctl : fur the relum ' Cnmmiss.
fuit per ipeciflle lu mid alum domiai regit,
nuiH:intuni per Koberitiiii Peck,' wai' not
luch that ■ - :■ -
For the saying < Tt wbi contained amung
the lUconis,' it is no precise HJiinDHtioii thnt
the king had granted lo hb predeceeson, that
ibejr ihoDJd be discharged nf the coUecling anj
dismej, but it is onl; an atlegatioH b; waj ol
Rciiil, and not b; precise attirinMion, Che plen
nitjDot be good.
3 & 3 Mar. D;er 117. & 118. the plaiatiff'!!
mhr in bar of all plendeth, thac Jolm Abbot
Df W. was seized of his lands in right of his
duirch, and so seiied by tlie assent uf the le-
mot hj indentare, 14 H. 4, ' lestat' quod prc-
'dict' Abbat' et cunvent' demiseniac et trnt''
'daunt' unto ibe plaintiff; and ruled, th
ihii linm of pleading was ill, Injomucb as
wn not allfdged b;^ precise affimatiati, ' quod
' dcmiserunl, aed indentura Eeilatur, quod de-
'miteniat;' which it not auHicieiit, insoiunch
aitl ii onlv BD allegation bj wajr of re
tbu tlie indenture dath wiineis, and the l
indeDtnte roaj witness so much, and yet not
lieadetnise.
And if in pleading there must be direct
tSnnitian of tli« matter dledged, iLien i for-
liori in a return, which must be more precise
tW in pleading; and so faj all the cniei I
hare fbnaeHy touched, it, appeareth that this
nlnrn is no eapress affirmation of the keeper
«f tbeGatahouse, that sir John Corbet is de~
uiaed in prison bj the tpecial commandment
of the king, bat only an affinnation of the
kcdi of tbe council, who had signified unto
km that hii detainment in prison, was by spe-
ciil comnuuid of the king.
Tbe retom, which ought to be certain, and
faactnal, uad affirmative, and not by the way
of inStmiBtioii out ofunother man's mouth,
i. 3, Rex vi^'iei. upon a Homine re-
. ^ J(>, against (he Abbot of C. the ■hcriff
retamrth thnt be had sent lo the teiliff of the
abbot, that answ^ed him, that be was the vil-
lan of tbe abbot, by which he' might not moke
deliTenuice, and a Sunt alia* was swanled, Ibr
hb retum was inaufficieot; iilsomuch that he
kid returned tbe answer of the bailiffof the
shhot, nhere be ought to have returned the
answer of the abbot himself out of his own
Triu. 33 E. 3, Rot, 46. parent' vilJ' et Burg.
ETO((iie de Norwich, repf" 08. Nat. Br. Case
31. Fdi. Nat. Br. C5. & S4 E. 3, Excom' 39.
the case appearcth to be >uch in a trespass;
^defenilaDt pleadeth the plaintiff is excom-
iDsnicate, and sheneth forth the letter of the
hisbop of Liucols, witnessing that fur divei-s
DMtnmacicB, Ike. and because lie had certified
DorjnBNMuaic'daoe by himself, but by another,
ibe Ituer of eicommiviication was annulled,
Ibr Uie bishop ought to hare certified his own
■et, and not tbe act of another.
UiUani 81 H. 8, Rot. 37, it appeareth by the
wluro of an H. Corpus, that John Parker was
craunitted to prison for security of the peace,
<sd for suspicion of felony, as ' per mandatum
I J : J per Robertum Peck,
that be was committed ■ per manduium domini
And for the first pa'riit, I conclude, that this
return ia iusulhcient iu lurni, iiisonmch, that i\
doth not make n preciiie and direct return, that
he was committed and detained by the special
command of the king, but anlv as it wis signi'
Sed by the warrant of the lords of the council,
which will mil serve tbe turn. And upon ibe
book of 9 H. 6, 44. the return of the fuuse of
a man's imprisoninenc ought to be precise aiiil
direct upon the H. Corpus, insomuch as There-
by to be able to judge of the cause, whether it
he sufficient or not i for there may not any
doubt he taken lo the reium, be it true or
false, but the court is to accept the same as
true; and if it be false, the party must take
bis remedy by action upon the casp .
And ai concerning tbe matter of the relum,
it will reM upon these parts: 1. Whether the
return, that he is detained in prison by special
commandment of our lord the king, be good or
not, without shewing tbe nature of tlie coni-
maudmenC, or the cause whereupon the com-
mitment is grounded in the return } 3. Whe-
ther the time Qf tlie first commitment by ibe
commandment of the king, not appearing to
the court, is sufficient to detain him in prison }
3. Whether the imprisonment of tbe subjects
without cause shewed, but only by the rora-
mandment of the king, be warrantable by tha
laws and statutes of thij realm f
As to the first part, I find by the books nf
our law, thnt commandments of tbe king ore of
several uatures, by soma of which the imprison-
ment nf a man's body is utterly unlawful : and
by Dlliers of them, although tiie tmprisoninenc
may be lawful, yet the continuance of him with-
out bail or mainprise, will be utterly unlawful.
— There is a verbal command of tiie king,
which is by word of mouth of the king's only;
and such commandment by the king, by llie
books of our law, will not bo sufficient either
to imprison a man, or to continue him in pri-
son, 16. 6. ' Monstrans de fnict si,' upen an
action of trespass brought for cutting of trees,
the defendant pleadetb that tbe place where tie
cut them is parcel of the manor nf D. whereof
tbe king is seized in ler, and the king com-
manded him to cut the trees: and the op in i en
of the court there is, that tlie plea in bar nus
ill, because he did not shew any special com-
mandment of the king ; and there it is t^reed
by the wboie court, tiiatif theking commandelh
arrest another, and the party ccnmand-
airett the other, an action of trespass or
false imprisonment i^ mainiainable against the
irty that arrested him, altbouiib it were d<me
theprat^enceofthekintt, 39 H. 6, 17. whera
le justificth the seizure of the goods of a
person that is outlawed by (be commandment
of tjie kiog, such a party being uo olliccr, luajl
S3] ^ATS,T&lAi^,iCBjMMh l6'J!l,~PncMdKvi(mihtH<J>eiaCDi]m, £««
not in BD actioi) brougkl ftgaiut Iijeq hava an;
aid of ib« kid);,; for such a comiiMDdaient fliven
to one that it n-A an officer, will noE any wayi
avail faini, tliat u to justily bimMlf ^y tb« K-
lurn of that commaadiuetit.
SrB. 6, 10. If the king give vWathingiand
I lake iheBame bj bis comniandmcnt tiy vord
. of tnoudi, it is not justified b; Uwj nuUiing
may pnu without matter of record.
10 H. 7, 7. end 17, 18, it ia agreed. that jii»-
li<^l ma^ commalld ooe to irreit anotber that
i» iu tbcir view ur (jreaence, but not ddc that ii
out of their view or pretence. (1 Croke. Hoi-
lida; V. UieDbridec)
And Keble 10 U. 7, 13, laid, that where one
ii arreited bv a parol command ia iheir view
or preKuca, it ii fitting that a record ma; be
■Sado of it, insomuch, iliat without auch a re-
cord there can hardlj be a jottificatioD in ano-
ther temk.
3. There is
titej wi «*«rj of tboD 6nd wtetwc h) puniie
tlietr augg«stioiM, and endure the aane pain a*
the other thould have had ia caae that hit wfr
gestion he found unmie: and that U>»i procew
of the law heoiada acainat them, without bsiog
takea or impiitons^ against the form of tlw
MOW chaiter, and other statutes. — So that it
appear* by the»e seveW atatuiaa, that aacb
of the king hj
hich, according to Calvin't
case in Coke's 7ih Report, it ia caQed by him,
' brere maodatum nan Tcmediabile;' and by
Tirtoe of inch a coomnndment, the king may
□either seize the goods of lus tubject, nor im-
prison his bodjr, aa it is readied m 49 Am. pi.
5r where it i> agreed by nil ihc justice!, that a
commluion to take a man's good*, or imprison
bis body, without indictment orsuit of the party,
or other due proceaa, ia against the law.
3. There a a commandment of the king,
which is grounded upon a suggestion made to
the king or to his council; and if a maa he
coininitted to prison bv luch a tuneation, t^
commandment of the king, it is an&wfii^ and
not wmronted by lh« law of the reabn.
The 35 of E. 3, cap. 4, Da Proviaionibui,
where ,it is caotaiDed in tfae Great Charter of
the francliises of England,' ihat none shall be
inprisooed or arrested of his freehold or of his
A^uichisea, nor of his free cuatoma, but by the
law of the land. — It ia awarded, consented and
catahlisbed, that from bencsfotih none ahall be
taken by petition or kuggeation made to oar so-
vereign lord the Itinf, or to hie council, until it
be b^ indictment or presentment of his good and
Iswuil neishboura, where such deeds are done
due maimer, or by procesamade by writ ori-
itthe
ir that 1^
be arrested of bis fmnchiae^ tior of bis freehold,
unless be be duly briiuitht io, and anawar, and
forejudged of the same by way of law : and if
any thing be done agninst tbe same, it sbaH be
redressed and holden for aouKht.
37 £. 3, c. 10, although it be contained
tbe Great Charter, that no nan b« taken or iiD-
[visoned at put out of his fteatold, withoiM doe
proceeaof tbekw; nererthelesi, diveta persona
make false auggutwni to tha king hmudf, •*
well for malice as otharwiae, whereby the kmg
iioften grieved, and divers of dM lenhn put in
great dunBg«s,o>nD:ary tstliefoimDrthesanM
Wherefore it is ordamed, that all tbty that
make such suggestions, be sent with their sug-
geitiona to the CfaanGdior or Trcewrer, and
upoD suggestion, either made to bim»elt or to-
his cou»ctl, for the imprisonmant of a man, ar*
against tbe law.
f ouKhly, 1 find that there is a commandment
of tlie king which is made under his hand) wiik
lis signet ; for io 1 and S of Philip and Hkj^
Dyer 183, where the statnte of 1 Bic. 3, c, 11,
restraineth the Warden of the Fleet for letting
any man at large that ia in npoo judgment at
tlie suit of any man, eic^t it be by writ or other
commandment of tbe king; it was doubted,
whether the queen by letter under her bud and
privy-signet doth give eommandment to tb*
Warden of tbe Fleet to suffer a man that is tber*
in execution to go about hi) busioess, or the afc
&ira of the queen; whether this be a wananU
able command or not within the BtaUta: and
ibe law bath always been conceived upoA thai
book, that such acooimandmentia not warrwh
aWe by law. And if such a. command wiU not
serve the turn, to give unto a man hii libntyt
which the law favo»reth, and had thecoonle.
nance of an act of padiamau fot the doiag of
it ; then I conceive it libould be a more stroi>g
case, the king .should not have power by hu
commandment to impriaan a map without due
process of the law, and restrain him of Ilia libeitj,
when there hod been so many acts of pa(li«-
ment made tor the liberty of tbe aulgccu.
Firtbly, I do find that there ia tlie command*
ment of tbe kiug.whidiisby his virit under th«
great seal, or the aeal of tbe QDurt out of which
It issueth, R^iati f. 09, and 70. In the wiii,
< De CBUtione admiuenda,' I find the words,
' iiiandatum re^' expounded to be ' fareve
' regis,' (ot the writ goeth : 1 Rei vie" aalatcm.
' Cum ouper ad requisiiionem S. de Isle caii»<
' nici Lincolne venen^iilie patria H. lincola.
' Epiacopi ipso in icmatis agente vicarii gene-
' laL per litem suas patentes nohis stgnibcan-
' tea NiclM. B. diet. Lincoln, dioc propter
■ manifintam contumaciam authcritata ipnn*
' epiicopi ordinar. excommunicat, ease nee si
■ velte, 6tc. vobis prsceperimoa quod prcfat.
' &c. aatisftctum ex parte ipiiu* N. qui virtuto
■ mandati nostri pnadict. per vos cafjt. «: Ift
< prison, nostra de HeWBate detent, eiistit, &c.
' nog nolentea quod pna&t. N. per breve nos-
■ Irmn pnadict. via prsdudator. Sec. prosequt
' posait in forma jniis masim. &c. integer csaa
■ debeat, vobia ptsacipimus quod scire, &c. quod
' ait, Slc quare pradwt. N. a prisooa pradict.
■ deliberan Don oebeat, Rexjuattciar* suisd*
< Banco saint. Cum n»a nuper ad significa-
. ' tinnem 3. de Isle, &c. usque ibi excoinmant-
' cat. exrilisse, nee ae valle, &c. easet aatisl«c>
I* N. virtute mandati nottri
9() ^ATE TKbUA lC«uui L iain.-n4ra«hti)r Sir T. Dmui, and oOen. [9ft
<mc 4«tau^ Bu, ct aolentw «o pneleuii
■pnbtoN. pcrbi**enMtru>'pmd.«uipn»-
< cl»d». <]«o mnuit umUu. win u^Dtitun, &c.
< pomMnU Mappalunt. itttut. 2w; per W«vc
< Mtnun pwcByMiBWfc pic&t. nc ^od icirc
'ficecU, &c. tobn ligDifio. M ooMuk. ct oii>
■monpocL in pUcitii per b«e«e predict comm
' dm legem et connMadioun iqni ■oiui.'
SaC 79, A E. S, G. a. 1 E. 3, c. 9^ witk, tbu
(ittj Cq|HM b a pwaookl mctioa U • eom-
wOMAmui. of the tuB^ fbr jt is < PMcipkMu
' nbi qKid ca^uW)' &b and jct tha difeukiit,
« thm it if Hid, ■ mienMbki by the eomnoo
In. TK. 8tV>. Cabin'i CaM, nitbtTliat
lk^tiMt<n>kuidoCwiiti,Tk. ' br«mm«Bd»-
' una ct imn'riiriia, e( tftem in— dttnm m
' iwniwritHJii.' finuaiMiidatofiaMreoM-
4b^ we miti of ndrt, faiMd Ml, &c. dibti,
kf^NMi^and ihortly «ll wiiteiealaBdi pw
VhI, vberet^.tbe painjt wTonged is to kootct
HMwbUi and lobe-rovediedfiir that wroi^
•hich iidpae HiCo htsh.
faxtbh, I do find.^ om books of Ian, and
\f the HmiMrr, tlwt tint special ' DtandaUiai
I ^skIbI lep^' is eipoanded to b* tbis lait, and
llM (he la« tahetboo BOlka of anif otfaer ■ a»-
< dsli «anilMnni,' than bj. this writ. Tb«
whitfa being so, whaa d)a rebsn is atada, ibm
ts is,ieifri)oiMd and dataiDed in prison bj th
tpHjsl.cemmwidaentof tbaltin^bowcan thi
(ovt a^udga upon diis reMrn, that «r Johi
Csthet oogbt to he kept in prieoa, and not to
hbailed; «A«ndMBatnMof lteipeciii<
■siHMWit ifciMt set fiwth in the reowp, »l
\j it mm sw*" ""''> *^ ^"^^ ^l ^ '
bsiUikf la Bifcion. e. 19, llSt jvu shall
' Pnscipimue tibi qood
i pennittBs
capitaUa j uiticiir'
I is Rirew, < Qaia
tri Aoglia replefiabilesexiafaut,Src. tunc iat-
pos' C. &. n £. a ndsene predict. li ta occa-
sioae. M dod alia detiiMimtur in eadem, iot*-
rim deliberan (ados per maoucapt. supnditt,
St hsbeai tibi tone coran pi^ht. justiciaF.
Dwniaa BMUWCBpt. illocuDi «t fc«c breve.'
Asd ibe ezppnuaii of tbii * tpeciale manda-
tum domiai reoii,' meatioaed in thp Writ, i»
eiponnded to Be ' breire domiai r^is,' and
diereapoa is this writ directed natotlie ihcriff
for ibe dtliTer^ of tbtm. — And so miicb for tbe
first bfancb of the Snc pan : I cooclude, that
tbe spenal comnand of the bng, wiibout shew*
iag toe nalnre of the mmnandnieot of tliB kii^
is loo nneral, and therefera inMiOcient; for
be oopw to have ratunwd the nature of die
comnuHMiiBaM of ibe king, whereh; tbe coart
BSgbt ban adjodged iukid it, whether it were
nch acamniewdineBt that tJie impnaonmeot ttf
nr John Codiet be lavrjul or not i and nhether
it were such a conunandment of the king^ that
although tbe iuptisoBineitt were lawfnl at fint,
jet be night be bailed b; Ian.
Aj«t as for tbe general ictain of < speciale
' tnandaiMw domim tegif,' witboat ihewing the
cause of the impriwsmant either apeGial or ge-
i)«al, I bold, that for that canse also tbe return
oeptioa of special
i_ . ^
Begist.
VI, the Writ of Hitnncsptioa goelh in this
■uaer. : ' Kex vie. saluc cum nupar asiignn-
• nrimns dilectna (£ fideles- nostros A. B. et C.
' D. sd iaqaishionea de fontaUariii, et tiaaa.
lakibH coBira fbnnam siatali dadom
WiuoD. editi in com. tno fodand. et ad
qiwsinde calpabilet insenirent. capieod.
1 pnsona ncctra salT« cnetod. faciMid. do-
a&adind- ~ ~
<.iWq
IB et ttanogres-
- BoouHa aDoe conm pmrnf. A. B. ta C. D.
' udict. fnerint, capt. et ia prisona de L. detent.
* eiitt. i qua deliberari ikhi posiont, sine mao.
'daio nustro speciali, nos lolentes eisdem C.
'p.et£.^tiam in bac parte taoreipecialem,
' tibi pracipiinus quod li pradict, C, D. ct B.
' occatione pradict. et noo alia in prison* prs-
li.. J..- 1,^ ^ pj^ tnuapeiiMonibos iltis
Eitst, ia regard of the HabcatCorpiu, which
ia tba eommandiaeat of tbo king only, nnda
tbe latb of Novmiber.
Accmding to tbe teste of the Writ, command-
iog tlie keeper of tbe pate-bouae u have tba
bodir ofur John Corbet, ' una ciua causa de-
' tCDtioiu*, et ad subjicieiidimi e»redpiendiun
' ea qnai coria aoitra dc eo ad tunc ibid, ordi-
' nar. contingal' ;' so ns tbe conuDandnent of
tbe writ being to abet* tbo cause of hie detain'
ii]giapiisoo,th*k«efwrafthc Gate-hoete doth
not give- a fall answer- uato' the writ, udIcm the
cauieof thBdetnameat io prison be returned;
and the ooort doth not know how to gire ibcir
Judgment upoa biip, either for bis unj>rison-
ment, or for hia disclmrge, accoTiting to the putt,
pott of the lirit, wbea iberc is not a cnuie re-
tamed. And forasmuch as opon an Eicont-
meDgCMmt certified, it hath been ai^ndgcd
(AentimM that certificates were insuificient,
wbare the cause of tbe commiBiieot bath not
been cettiSed ; that the court might adjudge
wbetbir the ecdoMStical judees, who pro-
aomwed tba eocomauiniaalioa, bad power over
the ot^oal cajiie, aeeoniing to ihe book of 14
H«a. 4, U, S. Rep. 68. IWIap's case, and 90
Edw. 3, EioommcDgemcat 9.
So upon an Habeas Corpus in this coart,
where a man hatb been commiited b/ tbe
Chancellor of BngUnd, bj the Council of Ei^-
land, Marches of Wales, Warden oF tbe Stan-
naries, liich-Comaiisnoit, Admiralty, Dntchj,
Court of Retjoest, Coeunissinn of^Senera or
Bankiopts; il hath several ikoes been ad-
judged that the return «^ insufhcieot, where
the particular, cause of iraprisonment hath not
been Aewn, to tbe intent rhat it mi^ht appear,
th«t those that committed him bed juriaclicCiDD
over the cause, otberwise he ought » be dis-
ST] , STATE TRIALS, a Chahles I. 1927 — Proaedmgi m lie Hahtoi Corpus, [ft
cbBrge<l>b;r the Im* ; and I jpare lo recite p»r-
tjcuttir CHUsei in every kind of these, becuiie
there arew tu any precede nts of them in several
ages of every kjng of tliis realm : and it ii an
iotidlibie maxim of the law, That as the court
of the KingVBench, aud Judge*, ou|;ht not to
dcnv an Ilnbeas Curpus onto aoy pritoiier that
•haU dciDRnd the same, by wliumsoerer be be
couiitiitted; so ought tbe cause of his imprison-
ment to be shewn upon the return, so that the
court mny adjudge of (be cause, wheilier the
GuuiL' >if the imprisonment be lantul or
Aud because I will not trouble ibe court with
ao iiuiny precedents, but such as shall suit
the ciiuse m queiition, I will only produce and
voudi such precedents, where the party wis
coinuiitted either by the commandment of the
king, or otherwise by the commnndment of the
phvy-couiicil, which Stamford, fol. Ti. tcrmeth
the mouth of the kinfi ; such acts as are done
by the privy-council, beine as acts done by thi
kinehimself. — And in all Uiese causes you Ghall
find that ther« is a cause reuirned'ai w> "
* a speciote mandatum domiui regis, &c
* mandatum privnticonciliidomini regis,' where-
by the court may adjudce of the cause, and hail
them il ihey shuH see cause.
In the 8lh Hen. 7, upnti return of an Habeas
Corpus awarded fur 'the body of one Kogei
Sherry, it appeareth that he was catnmiited by
the ronyor of Windsor for suspicinn of fclony,
and ' ad «ectam iptus regit pro quibusdam feli>-
* nils et trBDser^onibus ac per mandatum
* domini regis; SI H. 7. upon the return of an
Habeag Corpus «tnt for the body of Hugh
Pain, it appeared that lie was committed to
priwn, ' per maodatum dominonim priraci
' consilii aoioini regis pro suspiciam feloniEe.'
1 Hen; 8, Rot. 9, upon the return of an
Habeaa Corpus tent for the body of one Tho.
Harrison and others, it appears that they were
committed to tlte earl of Shrewsbary, being
marshal of the houshold, 'per mandatum do-
'. mini regis, et pro suipicione felonia*, et pro
' houiicidio (acta super mare.' — 3 et 4 Philip.
et Mariie, upon a return of an Habeas Corpus,
sent for (he body of one Peter Man', it appear-
eth that be was committed ' pro suipiciojie
' felonia, ac per mandatum domini regis et
' r^ina.' — 4 et 5 Philip et Marias,' upon the
retitrn of an Habeas Corpus seat for the body
of one Thomas Newport, it appeared that he
wal committed t« ihe Tower, ' pro luspit^ione
' contrafact' moneUe per privatum concilium
' dumiiii regis et reginc' — 33 £lii. upon the
return of an Habeas Corpus for the body of one
Laurence Brunn, it appeared that he was com-
mitted, ' per mandatumprivBticondlii domioE
' regins pro diveisii caiuis ipsam reginam tan-
' gent' ac etiam pro suspicione proditionis.'
So as by all tliese precedents it appenreth
where the return in eiiner, * per mandatum dn-
'. mini regis,' or 'per mandatum domihotum
. ' prtvnti coocilii domini regis,' there is also a
cause over and besides the mnuialum return-
ed. As to that which may be objected, that
' per mandatuiQ dotnioi regis/ or ' priroii con-
' cilii domini regit,' is a good rctnm of his im-
pnionincnt, I answer,
1. That there is a cause: tor it ii not lo bt
presumed thai the king or couucil would com-
mit one to pnsoa without some oSence; and
therefore this ntaniiatiim being occasioord by
the oSence or fautt, must be the cause, and
not the command of the king or council, which
is occasioned by fix cause.
3. It appears that the jurisdiction of the
privy-council is a limited jurisdiction, for they
have no power in all cauiei, their power briag
restrained in certain causes by several acts at
parliament, as it appet^eth by the Stat, of SO
E.3,c. 11.85 E. 3, c. I.Stat. 4. (vide 4 Instit
p. »i.) the private petition in parliament pei^
roitted in the 1 R, a, where the comiaons peti-
tion that the privy-council might not make any
ordinance against the common law, cuslouu or
statutes of the realm; the 4 H. 4. cap. 3. 13
H. 4,7.31 H.6.' And theirjurisdicUMi being
a bmited jurisdiction, the cause and grounds oV
their commitment ought to appear, whereby
it may appear if tbe lords of the council did
commit mm for such a cause as was within
ibeir jurisdiction; for if th« did command me
lo be commilted to prison lor a cause whereof
they bad not juntdictioo, tbe court ought to
discharge me of this imprismiment. Anil bow-
soever the king is ' Vicarius Dei in terra,' yet
Bntcion, cap. S, fbL 107, saith. ' (jood nihil
' aliuil potest rei in terris cum ait minister Dei
' et vtcariuE, quam solum quod de jure potest,
■ nee obsiat, quod dicitur quod principi placar,
' I^Ih liabet vigorem, quia sequitur in fine iegi*
' com lege r^a (juie de ejus imperio lata at ;
' id est, lion quicquid de voiuntate regis temere
' prabumptum est, aed animo condendi jura,
' sed quod conulio ma^tratuam luoram rege
' author, prKStant, el habita super hoc delibei»-
< tione et tract. recL flier, detinit. potestat.
which being so, then also it oo^ht to ^p*"
upon what cause the king commilteth oiie w
Srison ; whereby the judges which are indif-
ircnt between the king and liis subjects, may
judge whether his commitment be against the
laws and siaiutea of this realm, or not.
3, it is to be observed, that the king's com-
mand by his writ of Habeas Corpus, is since
the commandment of the king for bis commit-
ment; and this being the latiercommandmeaC,
ought to be obeyed : wherefore thai command-
ing a return of the body ' cum causa detetl-
tionis,' diere must be a return of some other
cause than ' per maodatum domini regis,' the
same comotandment being before the return of
the writ.
Pasch. 9 E. 3, pi. 30, fol. 56, upon a wnt
of Cessavit brtiuebt in the cooniy ol Northum-
berknd, the DeSndants plead. That by reason ■
of the county being destroyed by wnis with tlie
Scots, king Ed. 2 gave command that no wnt
of C'essnvit should be brouglit during the wara
with Scotland, and that the tiiog had sent his
writ to suroease the plea, and be avetretli ibU
the wan wtth Scotland dill continue.
W\ STATS TRIAI3, 3 Cimrlbs I. 1 ft27 — brought by Sir T. Darnel, and oihtrs. [SO
UeaHc tiMt gimh the nil« niih, That we
h«ve commBod t>7 ibe king that now i«, to '-'-*
Ifais plei, wber«fore we will not snrceaa
BOT writ of Ihe kingtliat is dead. And so upoa
an these rewons &nd precedenia tbrmerly lA-
Icdged, I amclade, that the ntum that sir John
Corbet whs committed and detained in prisuD,
'per ipecinle mandalum domini re^is,' without
sbewii^ ibe nature of Che (ommsndinent, by
which the coon maj judge whether the com-
mandmentbeofiuch a nature as he ought to be
delaiDediapriiod, and that witlioutsbewin; '
cause upon which the commandment ofcbe
iigroaiided,is not good. As to the eeeond part,
wiuck ■», Whether tbe time of the commilinent
bj tbe return of the writ, not appearing UDto
the court, the court ouglit to detain hiui
priMD, or DoM conceive tliHt be ought not
be continued id prison, admitting thnt the lii
commitmeot b; tbe command of the king we
lawlitl; jet when be bath coatinued in prison
bj Bocb reaaooable thne, as ina]> be thought lit
m that offimcc for whicb he is commiit^, he
(w^ to be brongbl to answer, and not la c
tiane still in prison without being brought
answer. — For it appears bj the books of
laws, that Ubertjp ia n thing so ftvoured bj die
la*, that tbe law will not suffer the continn-
taet of > man in prison for any longer time
tfaaaof i>«cnsitj it must; and chererore the
law will neither suffer the pnrt^, sheriSj or
jadges to cantinue a man in prison bj their
poaa- and their pleasure, but dolh speed the
delirttj of a nan out of prison, with as ret
able eipeditiaD a* may b«.
Aad upon this reason it is resolved, in 1 &
9 El. Djcr 175. & S Ed. 4, 13, ThU faowso-
«ter the taw alloiteth that there dibt be a term
between tbe testeofon onginal writ and the
letBitiof the Mm*, where there is only asum-
moas, and no imprisonment of the body ; yet
itwm not allow tliat there shall he a term be-
tween the teste of a writ of Capias, nnd the
leram of tbe same, where the body of a mnn
is to be imprisoned : insomuch that it will gire
■o way, that the party shall have any power
toomtintie the body of a man imprisoned any
laager time than needs must, 39 E. S, 7. 10 H.
7, 11. 6 E. 4, 09. 11 E. A, 0. 48 E. S, 1. 17 E.
3,1.& 8 Hen. 7.
KeUaWBy** Reports do all agree, that if a Ca-
pias iball be awarded against a man for the
appiriietiding of his body, and the sheriff will
retnni tbe Capias that is awarded against the
party, a ' oon est inventus,' or ibat ' laiigui-
dns est in prisona,' yet the law will nlliiw the
partj againM whom it is awarded, for (heavoid-
mg of his corporal penance and duress of impri-
KotmMat, to appear gratis, and for lo answer. —
For the law will not allow the sheriff by his
Use reinm to keep one in prison longer (hen
aeols most, 38 Asa. pi. 39. Brooks imprison-
oMDt 100 saitfa. That it was determined Id par-
liament that a man is not lo be detained in
praoB, after be bath made lender of his fine for
aa impnsonraent ; therefore I dctire yoar
Indibip that tir Jobo Corbet may not be
longer kept in durance, but be discharged ac-
cording to the Ian.
X. C Juilke, Mr. Attorney, you hava
beard muny learned Arguments; il'you be pro-
vided to siisaerpnaeiitly, we will hear you ;
hut if you will have a longer duy, for ihat you
are not, provided to niigue, you miiy, we will
give It you.
JJiideridge, If yon will, you may tee tbe
precedents ; it may be you have not seen some
(if them, and we aiu»i see them too.
Alt. Gen. (Heath.) Mnj it pleuseyour lord-
ibip,tbe Kciitlemen that be of ciiunsel niih the
knights at the bar, they have said much, and
apokan very long for tbeir cliints, and to good
purpose and pertinently. Tt is a caase that
carrieth with it a great deal of weight, both
towards lbs king aud his suNeclz nlso, and I
am not so hasly lo put myBcltupon tbe main
point' of this count, when it is almost time for
your lordship to rise.
My lord, ttie gentlemen have severally spoken,
nnd given and insisted upon several rensons,
and lliey have cited many preredents. I conld
say Mimelhing of them at this present, and that
some of them have been niistuken ; and tliere-
fore I heteech jour lordsbip, that I may have
time to answer, that I may not wrong itw cause
of the king's part, or slight ih^ cause on the
subject's part.
But that which I desire to say now u, that
these gentlemen have all uf tliero gone in one
form, to divide tbe cause into (wo parts ; The
lirst, the Form of the return. The second, the
Matter of the return. For the furra, methinks
we miiy put an end to that now, if your lordship
please, (hat we may have no return (o that
another day, bur I may apply myself unto the
matter or the return.
To (he Form of tbe return they have taken
divers exceptions, but they especially insisted
upon two main beads : Fir^it, 'That the Return
IS not good, because it is not an absolute
return. I coniesstbe ground is well Inid, nnd
the innj or is good, thnt if this r«tum be not po-
sitive) y the return of the Warden of tbe Fleet
himself, but tlie relation of another, it is no
good return, therefore I Deed spend no time in
that, cbe giwind being well laid. But under
your lordship's favour, (he minor proposition I
deny, we difftr only in tliat ; for I say that this
return is certain, and that it is not the words of
any man dse, but tbe express words o( the
wu-den himself, and that this is added tr ahin-
danti to give satisficlinn to the court, that he
had order lo make the return: therefore I de-
sire your lordship to cast your eye* upon the
lubstonce of the return, and diitinguish it into
parts. The words are, ' Delentus est in pri-
* sona sub custodin men per specialemnndatinn
' doniini regis, mihi ugmficatum per Warran-
' tuin duorum privuti concilii dicli domini
' regis, Ac.' If he had turned these words, end
said, ' Detent' est prout mibi significai' per
' Warraiituni duornm privati concilii per spe-
' ciale mandatum domini regis,' then it might
m botb of hn
SI] ETAl^ TRIALS, 3 Cuxues I 1027.— AMoniiqg* m S»
be taken to be tbe wonliof llie lordi of the
council : but tbe fint nordi bejng poiitire,
* Detentua esc per ipeciale mBodatam domini
' regis,' tint i» sufficient, and the rest ii lurplu-
tue, and he.dotli uot lav, ' praut mlbi siKni-
' £:at',' but ■ oiihi signmcat' onl; ;' nhich is
absiilute, and the reiolulioii thereof cestath
more in your lordthip'i eipoundinj; of tbe
words, tlian in putliiif^ an; case upon tbeiu.
Tbe second eicepnon ii taken to tbe Fonn
ef the return, for that there is not the cause of
tbe imprlsonmeat r«tur<ked, but of tbe detain-
ing alone. Mj lord, I la; bo more at present
to that, but this: no man is bonnd to sniwer
more than that which is the content* of the
vrit. But tbe writ it tna; be to knitir speciallj
tbe raoM of the detaining, or what the cause
«f tbe caption ii onlv, and if tbe officer make
■nsnier to that which is required of him in tbe
writ, it is sufficient. ' It maj be, there be pre-
cedents both wBjs, I am sure tbere me for de-
tentions, and [here is no cause whj the
ihall shew tbe lime of bis commitment : but if
the prisoner shall dutre it, your lordship ma^
grant him a writ, to Ehew the cause hot)' *'' ' —
ciptiaii nnil deienlisn also.
Tbirdlv, Tbej m? that this return ia
tain, and tbkt it is the Warrant of the lorda of
the council, and not of ihe king, by which he
n committed. For that, m; lords, I say, thai
if it had all been left out, and be had onljt
■wd, < Detentus fuit per tpecisle mandotufti
' domini regis,'tt had been auiicicnc : but when
he doth more, it is superBuous, and not neces-
sary, for it appeared before bj nhom he was
committed \ and when he reluma the warrant
of the lords of the council, it is not their words
that commit him : but they being the represeo-
Utive bodj of the king, they do express what
the king's command is, but they signifj ttottnng
of thair own ; and tbararoi^ I dewre your lord-
rilip to deliver your opTnion in that point oftliC
return, whether it be positna or no.
Tbis cause, as it greatly coQC«nu the Sub-
jects, so it much concerns (lie kin^teo. I nm
sorry there should be any t>ecasion to bring
these 'tbiup in question ; but since it ii now
here, I hops I shall gire sausfaclioa to your
lordship, and to the uarliea too, and I desire
that I mav'baTe till Monday Ibr it,
X. C Juttkt. I tliiak it is not best for us
to dcckra our epinions by piece-meals, but
«pon all the case together, and n you are a
Stranger to the ratura,soare w«; and there be
(oany precedents and acts of parliaracut not
primed, which «« must nee.
Dodtridgt, This is the greatest cause that
•var I knew in tikis court ; our jndiinientH that
we pie between party aud party, between the
king and tho meanest subject, ought to be
nuiturely advised on,, far so are the entries
of ourjndunents, ' ^od ntatura deliberatione
' habica,' It was judged, &c. And we must see
tbe precedents mA acts of parliament tliat we
tutet be now in fi»rce, and tbe geatloncn be
not delivered by this conrt> how shall they be
delivered i Applv yourself to shew et any other
way to deliver t£em.
boileridge. Yea, or eJie the; shall bat* a
penietual imprisonmeit.
jrn- Curiam. Monday was appointed fbr
tbe Attorney's argument, and in the interim
the Counsel fbr the genllenMn were by order
appointed to attend the Judges iritb nU the
pteetdent* and unprinled stMotet wlwch they
itioned, and that they shoold tetddie Attoiw
le again, answered
they did, and a Hole was entered tor it.
Monday, 30 IVorember, 169^. Tertio lit-
chaelis, 38 Caroli Aegis, in Banco kegis.
Sir John Corbet, sir Walter Earl, w JtAti
Ueveniogham, sir Edmund Hampden, kni^ts,
were bronght to the bar.
Altomtv-Otnerai (Heath). May it please
your iordsnipj these gentlemen, sir Jobe Ce^■
bet, ^ Walter £ail, sir John Hevetlngfaam,
and sir Edmund Hampden, upon their motion
to this Ceort to hive their Uabteas Corpus,
and that themselves, and thecanse of their ds>
taiiting tlicm in their several prisons, might be
brought before your lord>hlp, had it gr&nled 10
tbem. — Hy lori, at the Grst motion of it, the
kDowledoe thereof coming, and tint Itaty liad
such a desire, his majesty was very wiHmg l»
grant unto tbem, at to nil hit snliiecti, thit
case of justice ; and thonah it be a
t he hath been so gracious aiMl so jtw^ as
It to reliise to leave die essminatiaB and dt-
rmination thereof (o tbekMrsof tUskii^dein.
My lord, it is very tnse that rhh h ■ very
great caase, and halb raised * feat eipceta-
>•— and for tbe manner of it, more than wm
ssnryj but, my lord, I am afraid thcae
gentlemen whi>m it-concerns, have rather a(l>
vised tlieir counsel, than thar counsel tbem :
but I shall take the case as now I find it, and
ns the gentlestien's counsel, on the other side,
have led me the way to it. — The exceptions
that have been taken by the counsel on tbe
other side, to the retm-n made by the warden
of the Fleet, and tbe rest of the guardians of
Qns, have been tv
bin's memory, w
the Keiurns, ineyare all alike.
uf your lordship's memory, we wiU read 0
Then the Return was read ftiT sir John rfc-
veningham, by Mr. Keeling.
Altom^Gentrtt. Uayit ^eftse your lord-
ship, against this return the counsel of the gen-
tiemen have taken some exceptions, and bsve
divided their ot^ections Into two main pointt,
Ihe one tbe Form, tbe other the Matter. To
the Form tbay have objected (bur several
tilings: 1. That the return is not pasitivo, buC
referred to tbe ligDilication made by aitotheri
Bi the lords of the council. 9. That lb«
keeper* of tbe pristm* bave DM tetnmed the
cause oftfaeconmutmftit^ but tliecanie<tftb«'
Hall one ; but \[ tbe return was io, tlial vat
Mt much iDBterial, fur (liea it were bm tetnpo-
nrj, aad it might be amenileil: but, my turd,
they ha*e miuakea the loinar propDaition, for
thcj hare tuken it as gnnted ttinC there is
imperfect return from the lords of the coi
□1. Uy lord, 1 shall intreat jou to CRSt your
eyes apoD ihe return, and you shall find the
fint words positive and affinaalive : the wnrds
aie, ' Quod dMentut est sub cuatodia
' speciate mandBtoni domini regis :' t
wwds, * mihi amaificacum,' tbljow after, hut
are lut part of the aifinnation made before it.
But if ibe; will ha*e it as they seem to under'
Kand it, then they most turn (he words thus :
' Qood tetificalum,' or ' sigiiilicatum est mihi
tbeu indeed it bad ual been tbeir own proper
leturn, but the aignification of another, the
lords of tbe coanut : tbe turning of the sen-
WDcc will K*dK thii ptHUt; tbt thing itself
speak for itself. 1 conceive by your lord-
ship's tavoui, that it i) plain and clear, here il
a positive return, that the deiaining is by tbe
comninndnipnt of tbe king: and tlie rest oftbc
return is mtlter for fiatislaction to myself and
tiie Court, than otherwise any part of the re-
Tiie second Objection hath dcpeodaiice upon
this, as that he halh returned the cause of tbe
cause, and not' ilie cause ilself, wliereio, under
jour lordship's favour, they are ullerly mista-
ken ; Ibr the return is affirmative, * Ego Jo-
' hauaes Liloe testi&cu, &c/ 1 know that
amon<( the logicinn) there are two causes, there
then
S3] STATETSIAIS, SCoAALBt I. liil^ ^-brought by Sir T.DaTnfl.mdothm. [34
due, which i« not good. 3. That the return
ii inperfect, for that it sliews only the cause of
ibe detaining in prison, and not Uie cause of
the firtt commitnient.~-Aad lastly. That the
rttam is contradictory ip itself, lor [hat in the
int^aitthereurthereiEacertifiealion thol the
detaining of these gentieioen in prison, is ' per
' ipeciate maodatum domini regii ;' and when
the Warrant of the lords of the council ii
shewed, it appetrs that the commilment ia 1^
Ibe command of tbe king, li^sDified by the lords
«f Ibe' council : and by your lordsliips facour, I
will give a several answer to every of these se-
leral olijectioiis. Aud for the firat, that the
lemm is not positive and al&naatiie, but de-
. pendsupon and hath relation to some otlit^r,
aad therelbre it is not good ; I do agi'ee Ihut
iht ^tmnd is true, that if (he return be not
pouore, it is not good : we differ only in the
minar, that the return is not positive and af-
inoatirc ; for I agree that these Book-cnsea,
that have been put, are good law : as 37 Ass.
fl. es, that if tbe abeHtt return that be had
sent to tbe bailiff of the hundred, end be gives
bin that answer, that is no good return ; for
the sberiS' ought to make the return as of his
owD act, wiiJiout naming of the baililT of the
handled iu his return : tor if he return, ■ Quod
' aaodavi balli>o itinenmti qui babet letorn'
■ omnium brevium ei eiecutionem eorund' per
'caitam domini regis qui mihi dedit nullum
' Rsponium ;' thia is not good, if he were not
htiliffof a franchise or ligniory, for so is 21
B.T,fol.4.
There hath been cited to maintain these ob-
jections, SO Ed. 3. The record I have perused,
and there I find that tbe Bishop said, that it is
iiMod ■« nrcAivu, in the record, &c, that be
was eioommunicaled ; hut it was fouitd to be
taorcAtvu, &c and that is no positive retnrn
thai it is ao. I will oppugn wiiat hath been
said by the Counacl on the other side ; it must
be granted that if the return here be not posi-
tite,it is imperfect,andin5H. 7,38,iti>Eaid,
rauisrithere in
the hirdi of the council, for that is cauta cauia-'
le : but the primary and original cause, which
is couta causoni, is ' speciale mandatutn dorai-
* ni rei;is ;' the other i9 but the council's signi-
fication or testiiication, or warrnnt fbt him that
made iherelum.
To the ihird Objection, that the return is
imperfect, because it shews only the cause of
the drtainiDg in prisnn, and nnt the cause of
the fim commitment : My lord~, for that I
shall not insist much upon it, fur ihal I did sa^
tbe last day, which 1 must say again, it is sum-
cient for an oSicer of the law to answer that
point of ihe Writ which is in command. — Will
yuur lordship please to hear the Writ read.and
then to see, whether the wardens of the prtsoo*
hate not made answer to to much as was in
Th
tail
a the Writ not read by Mr. Keeling.
Attorney-General.. My lord, the Writ itself
clears the ol jection ; for it it to have the party
mentioned in it, and the cause of his detention,
returned into this court ; and thererora rhe an-
swer to that is sufficient. Only, my brd, tbe
warden oF the Fleet, and tbe rest of the keepers
of the prisons, had dealt prudently in , their
proceedings, if they had only !,Bid, that thrj
were detained ' per speciale mandatum domioi
' regis,' and it had been good, and they might
have omitted the rest: but because, if they
sliould make a false return, they were hable to
the actions of Ihe party, they did discreetly to
have the certification of tbe lords of tbe coun-
cil, in suspicion that if this return was nut irue,
tliey were liable to the actions of thew gentle-
men.— In 9 H. a, 40, 44, it is aaid. That wliat-
soever the cause be that i> returned, it must
be accepted by the court ; they iitust not
doubt uf the truth of th* Return, an'l the of-
ficer that shall return it is liable to an action
if the return i« false ; and therefore the guar-
dians tif the prisimsdid wisely, brcnuse tliey
knew this was a cuse of great ei|>ectHti<)n, to
shew from whom they had their Marram, and
so to see whether the caiiae he true or not.
The last Objection to the Return is, th^jt it
is contntdictury in iuelf, ns that the firtt part
of it is, that tht^ are detained in prison ' per
' speciale mandatum domini regis ;' bnl in thia
relation of il, it thews that tbey are detained
85] STATE TRIALS, 3 Crarui \ 1 (iQ7.—i'roixedngt on the Haheat Corpta, £80
by tlie comnuind of the lords oF the rouacil ;
fur the words of their WarrHiit ace, to require
S3U stiil to detain him, &c.^Hur, my lord, if
»y will b^ ptcused to see tlie whule Warrant
in ihai wumant, but they say ihiit you are lo
take notice of it, as ilie woids and commuid
of tliB kii.g ; for, iiij' lord, tlie lurda of tl>e coun-
cil are tlie Krvuili to the kin;, they signify hli
majesty's pleasure to your iurdship, and ihey
Bay it is Iiis iiinjeity's pleasure <fou tliould
know [hilt the firat comniitincnt, and this pre-
sent detaining hini in prison, are byiiii mi>jc»-
ty'9 epecml conimanrinient. — And tliit, my
lord, is all lliat I mil say for the sutSciency ai
the Form of the return, to prove that it is sidfi-
Toucbiiig the matter of the return, the main
taint thereof, it is but a single question, and 1
ape, my lord, of no greiit difficulty ; and that
b, whether tliey be replevissble, or not reple-
visahle ? ll appean thnt the commitment is
not i'l a \es.a\ and ordinary way, but llint it is
'_ per sptciale manilatum domini regis ;' which
implies, not only the fact done, but so extra-
ordinarily done, that it is notorious to be his
majeslf's iiniacdiate act and will it should be
w> ; wfjelber in this case they should be baila-
ble or nut in this court, nliieli I acknowledge
to be the highejt court of judicature for such a
case as is in question.
The counsel on the other side desire, that
they may be bailed, HTid have concluded thnt
they may not l>e remanded ; their grounds of
argument, though they were many timt <lid
ipeak, f have m my Collectiuii divided into
The firat was. Reasons that ibey must be so.
arising fnm the inconveniences that would Ikll
ti> the auhjecis, if it should noi be so in the
mam pointsofilieir liberty. The second was
they ;lie<red divers uuihorities out of their
law-bnnks, which they endeavoured to apply.
Tiiethlrd «ai, Ti.e Petition of the Commons
ansueied by several tings in parliament. The
fourtb was. Acts of PDrUament in print. The
la-st wiis. Precedents of divers limes, which
they alle<t):cd t« prove, that men cummiited by
the kind's commandment, and by the com-
in''ndment of ilie lords of the privy-council,
(which I conceive tu he all one, for the body
of the privy-cniincil represent- the king himself)
that upon such commitiueut in such csubes
men bad been bailed.
In (be CLiurse of my aipimenls I will follow
their mttiiod, lirit, to answer their Reawnt,
and rheo those Books wliirh they have cited,
which 1 conceive to be pertinent to this ques-
tion, niid t)icti the Petition and Ansver made
is parliament, and ihen tbeir Acts of Parlia-
ment, ncvt llii'i. Precedents ; and tastlf, I will
give lour lord&liip »'<me reasons of my own,
which I hnne shall suflicieatly satisfy ynur iord-
Bhip I'l.l all otlii'ra, but the parties tlirmsrUes,
fori tT;rept them.
My lord, the threat aiid mighty BeasoD tiiu
they inniated upon, was the iiicunvenietKM that
might come lo the subjects in their liberties, if
tiiis returo-should be godd; and this reason
they inferred out of records and books of the
coDimoB law, which gives the liberty of the
subject, but yet it is their inberi- ,
Utnee wcundum legem terra.
My lords, they put many Cases likewise to
enforce it, 1 aud 3 Eliz. Dyer, To. IT^, (bat the
continuance of a Capias shall he from term to
lerm, wi^ut a term betwiit, because olli«r<
wise tbc party defendant may be kept too long
in prison ; and 38 Asa. pi. 93, Broke tit. Jn-
prisonment 100, that imprisonment is but to
detain the party till he have made fine to tbe
kini, and therefore . the king cannot justly de-
tain hiiu in prison after the fine tendered ; and
IG H. 6, monsirana da faict 183, if the king
command roe to arrest a man, and therrapoa
I do arrest him, he may have an at^on of &ls«
iniprisonmeat, or of trespass against me, thongli
it be done in the king's presence : and 1 U. 7.
4, tbe discourse afUussey, where he saith, that
sir John Markbatn delivered unto king Edward
the 4tb, that b« ahould not arrest upon treaaon
or felony any of his subjects, becaose he could
not Krong hit subjects by aucb arrest, for tbey
could not have remedy against hiM.
These, ray lord, are tlie Causes tliat they in*
sisted upon for this purpose. To the two £nt,
I shall give but one answer; which is. That t)l«
nsinuntin these two cases, and mosi of the
other cases before cited, appears to be is the
ordinary coutse of judicaCure fit for Westtnia.
Gter-hall, and not for tbe king's cooDcil-tatfle.
A writ of Capias was tt>e firM orixinal of it,
and therefurc not to be applied to the c«as« of
And for the other two cases, the law pre-
tumeth that the active part ul- ihew is not to
proper for tjie mB)esty of a king, whoever doth
these tilings by his subordinate officers; but
that the subject should not ha commicwd ,by
the king, was never heard uf, for Che kioE mttj
couimit any man at bis pleasure; bat that is
net our case ; hut whether when the king hath
committed one, he must render ■ cause oflhU
commitment, that it may appear wbetber the
pally be bailablcor not, or else the party niwt
hc'delii-ered.
The book 9 E. 3, fol. 16, pi. 30, ct(«d of*
Cessaiil, I lie king having by proclainatjon com-
manded, that in the county of NortkumberUnd
no Cessavit should be brought, Ac. during tbe
war ; the tenant pleaded tins command, and it
was denii d him, and lie, notwithstsndtog thet,
was comiminded to plead ; hut ibe reason
t! eteuf was, because 'be commandment thereof
was given by E. a, who being dead, the com-
mnndmeiit was determined.
The Book of Edw'. 3, 4 ful. 16, is indeed,
where the commandment wasfirenbji tbe same
king, and that was likewise denied him ; fw
the king cannot command youi lordship, or any
other court of jtiuice, to pftKwd <'
ST] STATB TRIALS, 3 Cbablbs I. J6S7.^irtiiglubySirT.Z>anitt,mdo(hat. [35
My lord, the main fundamental grounds of
nrgumrnt upon thia case begins wit)i Ma^^na
Charta, Trom thence have grown st<i(utei Tor
exptaniicmn tbereot', eeveml I'etiiioiis of'par'
liainem, and Precedcriis for eipeditHi" ; I itiait
giTE BOswers to them all.
For Mngna Cbarta, in the 39tb cliapter, hntn
these norils ; ' No freeman ^fantl be tnkeii or
' imprisoned, or disseised, of his freehold libera
' tie!, nor free customs, Bor be outlawed, or
' exiled, nor any other way destroyed, nor wa
' irill not pass upon him nor condemn biin, but
' bj lawful judgment of hia 'peers, ur by the
' law of the realm.' — Mj lord, tins statute batb
been many times conhnned; the lord Coke
Dnmhered up the number to he'aboui iwentj;
and we are to conclude on this, it is the foumui-
tion of our Liberties.
No freeman can be imprisoned but bj
' leK^te judicium parium sugrum,But per legem
' terrz,' But will they have it understood that
no man should be conimitted, but flrst be shall
be indicted or presenwd? I ihink thnt no
learned man will ofFer that; fur certiunly there
is no justice of peace in a county, lior consta-
ble within a (own, but he doth (Otherwise, and
might commit before an Indictment can be
drawn or a presentment can be made: what
then is mennt by these words, ' Per Irgeia
' teme?' If any mm ibatl say, thia doth not
warrant that the king rnay for reasons moving
him commit a man, and not be answerable for
it, neither te the party, nor (under yojr lord-
ship's favour) unto any court of justice, but to
tlie High Court of Heaven ; I du deny it, and
will prove it by ourStatulea.
My lord, it wa» Urged by the counsel on the
other side, that our printed Magna Churta,
which saitb ' nee super eum mittimus,' is mis-
lakcn ; and tbat in divets Manuscripts it is ex-
pressly set down to be, ' nee euin in carcereis
' mittimus.' 1 cannot judge of the Manu-
scripts that i have not' seen ; hut, my lord, I
have one here bj me, which mas written nianj
yenrs ai;o, and the words m print are word for
word a« that which is here written.
Then they say, that Mjlihew Paris sets it
du»n so in his Historv : Aly ionJ, we do uoC
govern our^eives by Chronicle, but to answer.
that of Matthew Paris, he reports a thing done
in king John's lime, but it was then but thought
on, and it wus enacted in the time of Henry 3 ;
■lid ibere be many things said to be' done in
Matthew Paris which were not, and tiuiny
things omitted hy him which were done. Thi*
Charter was bat in election in the time of king.
John, and then it might be, ' nee eum in car-
' cf-rem mittnnns;' but It was not enacted till
the time of Henry 3, and then that was omitted,
and ihe Charter granted as now we have it. —
But if thev do sea no more than 1 in tkii
Clause, I know not why we shnuld coniand.
about the>« wnrHs, seeing the tirsi p;irt of thia
Statute saith, ■ Nemo impnMne'ur.' why ihea
may not I suy as »ell, ' nee eum in carcereui
' mittiniuif I iCf nu differ;>nce in ilit wntili,
mj lord, I (ball not iutin auj
;o the taws of this kingdom ;
for it is put of your lordship's oath, lo judge
tcctNding to the law of tbe kingdom. But, my
k>rd, there is a great difference between those
legal csmmands, aed that iJnoluta potetlt that
■ sovpTv^n hath, by which a king commands i
bat when I call it siioltita poteilai, I do not
■nn tbat it is such a power as that a king may
do >hBt he pleaaeth, for he bath rules to govern
hiaiselfby, as well a) your lordships, whi> are
mbonliDBte judges nnoer him. The difference
B, ibe king is the bend of tiK mme fountain of
JtEUce, wLich your lordship administers to all
hii Mhjects; all justice is derived from him,
and what he doth, he doth nut as a private per-
son, but as the liead of the common wealth, as
jutitiarmt rtgni, yea, the very essence of
Janice nndcr God upon earth is in him; and
ihiil] Dof we generally, not as subjects only, but
as Iswjers, who govern ihem-ielvei by tbe roles
«f the taw, submit tO his commands, bat make
inquiries whether they be lawfiil, and say tbat
tbe king doth not this or that in cmvrse ofjus-
tioe?
If your lordship sitting here shall proceed ao-
nnding to justice, wtm calleth your actions in
(pestion, except there are some errors in the
proceeding ; nnd then yon are subject to a wrjt
of error. — Bat who slutl call in question the
actions or the juttice of the kinf;, who is not to
five say account for them f as in this our case,
that be commits a nil^ecl', and shews no cause
Tbe king comniito and often shews no cause,
for it is sometimes generally, ' Per speciale
' mandatum dumini regis,' sometinies ' Pro
' cenis causis ipiuin dominiim regem moventi-
' bci;' but if the king do this, shall it not be
tvidi It is all one when the commitmeiii is
' Per speciale mandatum domini regis,' and
when it is ■ Pro cenis causis ipsum domiuum
're^piD mavcrttihuB ;' and it is tbe same if the
CDminiin^eiit be ' Certii de causis ipsum domi-
■ Bum regem tangentihus.'
And, my lord, unless the Return to you d<)th
open tbe secreU of the commnmeflt, yuur lord-
diip cannot judge whether the party ought by
liw to be remanded, or delivered ; and there-
tire irihe king allow and give warrant to those
ttoi make the remm, tbat they shall ei press the
cause of the commitment, as many times he
'otb, eitber for suspicion of folony, or making
naMT,or the like; we shall shew your lord-
dip oiat m these causes this court in itsjaris-
didion were praper to try thttse criminnt causes,
ud your lordship doth proceed in them al-
thua|b the commitment be ' per specinle man-
I datan domini regis,' which hkth not a secret
la il in these causes, for with the warrant he
Nndtth yonr lordship the CBa«e of the commit-
tisg; and when these warrants are made and
maght into this comrt, your lordship may pro-
Mcd: bol if there be no cause ripresseil, this
<Mit hath nTwtiys used to ramand them ; for
it bath been used, and it is lo be intended a
miter of state, and that it is not ripe nor
■bdy for it to f/fvat.
STATETRIALS, 3 ChablmL l&^.—I'nxMUiigtmtrxjrabeatCorpa. {*»
loneer upob tlie lileral expotilion of the words
of Miv{Q!i Clinrta, bui I oill resort to ihe rpsi
ofil, which b etprestiii the subsequeot statute
The Cunsel on ibe otlirr side snid, that die
ItOlUte of 38 E. 3, C. 3. exprenelh and giveth
life to this (Jharter ; I sliall desire to biive that
Statute reail.
Krelinx, Clerk. Item. ' Wbrre«* it ii con-
• tujneii in the Grent Clmrier,' &c. (Vide all
these Staiules in LitUetou's Argumeut in Par-
Allurneg Gentral. Mj lord, ihe reulin); of
this iiatute will i>i*e aO'-'iir to it ; for it ia ap-
parent li^ the nurds thereiff, nQ.iesliallbetnlieu
by Feiiii.'ii, &«. and that the court be eitend-
M 10 the fir^t iirre»i, but tl^jr are ta be uuder-
»too(l that noii« shiiU be condemned, but he
ihull he brougiit lo s'l^wer, und be tcied. And
if it be eipiunded ntlierHisc, it «i!l b^ contrarj
to that practice which was tiiea in use. — But it
is uiietly forbiildeii hj thi' Siatuie, that any
man should be cundeiuned upon iupiirstiniis or
pctitiOK^ wade to ths king nr cnuiicil, without
due trial by law. — The ncii Sialutc-tliuy cited
trns S5 E. 9. cap. 4. My lord, 1 desire ibat
that m.ij be read.
AVrfiop, Clerk. luni, 'That no man, of
' what estate or cundiliun soever he lie, shall
' be put out of lauii iir teneiuent, nor taken,
' nor imprisoned, nor disinherited, nor pot to
* death, without being titoiiglit to aiisner by
' due process of law.'
' Altomry General. Mj lord, this Stati
intended to he r linal proieculion : for if a
■ball be iinprisoued without due proceM, and
never be brought to onsiter, tliat is unju>l, and
forhiJdeii by Uiis st^itute; but when a man is
taken in causes ihut are unkiiuwn to us, (who
walk below stairs^ we are not privy to ilie c'
cunistancet wbicn may cause the trial to
delayed ; and perndteniure it is not time
brin;; tlie matter to tiiid, because it is nut i
come lo maturity, end tberifore tlii« is i
within the meaning of the statute. — Another
Statute thut they mention is in tli« same
sud it is page 9. ch. 9. 1 desire it may be
Kreling, Clerk, Item, ' Because the Peo-
' pie 9f tie realm, &c.' (Vide Littleton's Ar-
gument poifca.^
Atioraev General. My lord, it is »eiy clear
itBtute had no Dutiin.r of thought M
n question ; but whereas >hcriSs did
.procure commissions to he awarded to theni-
sclves tor their privBte gaiu, to the prgudice of
tlie subject, tlie siatate condrraneth ilu'sr com-
mission!', but it maketh notliiug to this question
which we have now in hand. The neil Sta-
tute nhlcli they tiled, wns 37 Ed. 3, cap. 18.
I beseech it miiy be read.
Ketlin^, Clerk. ' Item, Thoueh it be cou-
■ laiued iii the Great Chaner/ Sic. (Vide as
■foresaid.)
Auorniy.Gentral. My lord, this Statute
seems to lie a c»mmentiiry and lij^ht to the
utherStatut«s, the scope nbcceof is against pi'
that this
e committed
stiggeitions mode to the kiog or bi* CMin-
cil, and itot in a legal way, nod thetetore >t
idemns theu; and tliia is more liilly ex-
pressed in the Statute of 38 Edw. S, tap. g.
whicli they like wise, mentioned ; By which sta-
tute direction is given nhat security, tliose per-
sons which make such suggestions are to |ei>e,
that they should prosecute tlieir suggeslionk,
and what punisliment they shall undergo, if
their suggestions be found false.
Ketliug, Clerk. ■ Item, As to the artidt
' made at the last parliament,' &c. (VJdeasbe-
fore said . )
Allomry Gfticnl. My lord, this and the
last Statute srem to conduce botli to one pui^
pose, that ibev that in tlieir accusations wcat
not in a le^l way to biioft the party to his an-
swer, it <riui directed by this st^itute, that they
sl^ould go a legal wny.— The last act of parlia-
meoc in prim, the caunse! on the other side
produced, was tlie Statute of 1 U. 2, cap. tS.
which I desire niay be read.
Kaling, Clerk. ' Item, Whereas di.i
' people at the suit of parties ■
' the Fleet,' &c. (Vide as before,)
Altonry General. My bid, it appeareth
that the scope of this Statttte is against the
Warrieus of the Fleet, for some iniscBrnTiges to
them; but tliere ii one thini in this Swtuie
which I shall desire your lordship to observe;
and that is, for iliose nuHleimcanoii he nhall
forfeit his olfice, ckcetit it he by writ from the
new doctrine in tliose limes, that the kiii;
miKht then give such commandment lor cuiii-
mitiing, Ilie scope of (his Statute had two
hands: 1. Thatilie warden should forfeithis
office ; and, 2. That he sluuld recompen** ^^
In the 4tli and 5tb of Phil, et Mar. Dyer
16a. it was resolved. That if the Warden shJl
deliver ii (nan out of prison without command,
he forftiteth bis office, and damage unto the
party ; but if he have the command of the
king, thai shall eicuaethe forfeiture of his ol-
fice : but he must bring the party hiilier,and
here Ihtse gentlemen are now, for that com-
mandment of the king is no exception for him
not to observe.— If he receives a writ from ihii
court, to shew the court from whence he re-
ceives his warrant, it may excose the fotleiture
of his ulh'ce, hut notwithstanding he is subject
to the acti"n of the party.
But ! desire yeur luidship to observe that
part of the Statute, which the other party would
nnt make use of, whicj is, that tlie kiuR may
command Ly writ or utheiwise ; these were all
the printed stalales cited by the counsel on the
other nde. But because I would not misinter-
pret these statutes, 1 thought it equiil to. desire
your lordstiip that they might be read. Be-
sides the primed Statutes, they meniiuned Pe-
titions by tlie commons, and the Answer* lo
them of several kiiigsin parliament. The first
is. Kot. pi. 6 VJ. 3, narnero 1 et 90 i besides
these two, there is one other of S8 Ed. 3, n. IS-
My lord, of tbese three Petitions and tlieir
41] STATE TRIALS, SChauvsL lG27.-*r(K^ kf Sir T. Dmd. aid dim. [«
Ammo*, tbc two fintwece meniKHkcd bj the
omibkI od ib« otber side ; Bod tlmt in 38 Ed.
3, SS, 1 haTS piDdaced, «11 of tiiaa CTcn to one
pvrpuse. The commons tim pnilioned th«
LiibilMall the'StatDlei ii»de in eipotiiioa
dT Migna Charta, aSd ot the forest, ub; b«
kept mud otnerved: the kio^ makes Amviei,
ibu it iball be dooe. And lo one of the An-
•wen it ivsaid. If anj mnn be grieved he miy
nmplufl. But wLm it all this to the pobt in
qomioiip Could there be anj other Auiwertu
(ire lite to tbese request^ i The king he ii p«-
[HiuDcd that some are injured ; he answcn,
ntL if ibej compiaiii, the; aliidt be relieved.
And Don, my lord, we are where we woe,
' to £ud out the true meaning of Magna Charta,
for there is [he foundatioa of our case ; all tliij
Ehic Lath beeo said concerneth other things,
and ii nothing lo the thing in quettioo. There
iiDsta nnfd either of the cammioneot of the
king, ur ciKmnandaienC of the council, in all
the Statutes and Ilecords.
And now, aiy lord, I am at an end of those
Stituies, and come to thnt thai iviis aUedced
ud mentioned to be in 3 D, 6, 40. and if I
cwild have fuund it, I would have brought it,
but 1 could not fiiid it; there(i>re if they have
it, Id«sire that the; will sbtw it, but I tliiiik
tljc; hate it not, and therefore I will Jet thnt go.
iij lord, I come to that which I insisted
nppn, the. question aa it was at lirsl, not whe-
tkn iheting or the lords of the council can
cDBwut a nan, and shew no chum wherefiire
ihej do commit him ; hut whether the ordinary
coDcbof jintice hnve power to bdil him or no;
far that I will inwit upon ibe Statute of Westm.
Luhicb i desire yoiu lordibip may le rend,
ssd then I will apply, (vide We:,tni. priino.) —
Uy lord, this Statute, if I misunderstand it nnt,
iltfuU expression to the purpose of AInipia
Ghana; the scope whereof ii to direct u» in
what cases men imprisoned were tn be bailed.
It was especially for direction to tbe sheriffi
ud others ; hut lo sny couKi of justice are
ndoded from this statute, 1 conceive it cannot
U. It recites. That whereas heretofore it wai
not reiolted in what cates men were replevis-
abk, and in what case* not, but Only in thene
four cues; fur the death ofaman, or by the
cuounandutent of the king, or of liis justices,
aroTihe lljrest.— My lord, I say ihat this sta-
tateKprasseth not th« law was made by thii
Itilute, thai ill these cases mim were not re-
plniMhle; bul it cxpmMih that the law was
dear in tliese cases ; in these four cases it was
deady resolved before.
Ifi«y you, my lord, obterve iIk time of the
onkiBgof this:i'latute; tiat of Magna Chnrta
wu made in tl.e time of Henry 3, and thii uf
Weiiminster in the time of Edw. 1, so ibat it
wasniade in the time of the same. — And, my
k>rd, if ibey had unilersiond the atntute of
Magna Chwta in another lenw, would they
Bot haie expressed it so in this statute 1 Wu
it not fitter for tbeni than f^>r us, they being
aurcr th$ fint making of Mas"* Charta than
m arc i But certjuiilj lU bMtitte of Magna
Charts was expomded at (be time, as I Jm*«
shewed bel'or*; if not, without all doubt at tlw
time of making of Westm. prima.
The pariiament would not iiave been so
careful to provide for things of lesser monent
and omit this of so great consequence, il thera
bad been any queauon of it. lo all times and
agts. Magna (Jhaiia hath been coofinned, bul
tliey shew not any one law tliat doth except
against thi) positive Uw of Westmtntter the
tirst, or uny acts of parliament ; nay ^ore, ia
any pHntod Books, that in Uiis case men should
be replerisable.
My lord, if you know nothing printed or no-
printed, if any will deure lo alter a course that'
always bsih been held, you will se«k for Pre-
cedents, for the constant use and course it tha
best exposition of the law; it is not enon^
for me to say. This it is, uolesa I make it good.
First then, I say, they on the other tide
cannot cite One Bouk, Statute, Or ottier thing,
to prove, that they that haie been committed
' per specinle mandunim domini regis,' are
bailuLle. But, my lord, I fiud same lo tha
contrary, that they ore Dot bailable, and 1 will
cite some uf tliem, and read uf ollieis; for I
would not in a case of that expeciaiiou, that it
should he thought that any thii% siiould be
misinterpreted.
In the 33 Hen. 6, f 33, Robert Poyoing'*
Case, he was committed ' pro ditertis cnu»i*
regedl tangent" ;' this altera
:, for i
ae, f'lr
the Warrant ' dt
is no question upon this : but, my lord, 1 know
lliis is not the point in onestiuo.
'Ihe next thing 1 shall shew unto youT lord*
ship, b Piuch. 31 Edw. 1, Hot. cla. 3, and this,
tnylont, was near tlie lime of making of th« sta-
tute of Westm, 1, and this precedent is lo this
both those shireii)did receive commanduiem by
letter:) train tbe king. That whereas die earl of
Warwick had comniauded ilivers persons in the
custody of the said sheriff, the king sent a letter
to the saiit sli«ri<T, commanding, that to those
who were committed to bis custody by tlie earl
of WafwiL-k, he abould shew no grace to ihem;
that is, they should not be bailed.— The sheriff,
notwitlistnndmg this cummniid, lets some of
tbo'C prisoners lobiiil; whereupon he was com*
plaint of in pmrliamcnt, that he bad dona
iigainst the king's comroaudmeut, and be war
condemned for Ji.
This was in parliament; I wonder this should
be done in parliament, and that it wjs not said
there, that this commiUutnt, beiuj; done by the
king's commandment, was not good ; no, be
was condeiniied in parliament, f>ir it was on*
that did break the statute of Westm. prim.
My loid, the use tli:it I make of ibis Ht.'cord
is this: It reciies, thnt the earl of Warwick
commhud dive's, it might be ihai be did cota^
mit tliein by direction from (he kin.: ; but tbe .
record menliinetli not so much, but it shews,
that the tang by letter* coumuKled the shBriff,
43] STATE TIUALS. 3 Chaius I. 1037.— iVooecla^ on lit HiAtm Corfu/, [44
Mut he ■bonU sbew thme pmons no grace,
Wi4 ;el he did ; be wn cxanined apon lh»,
and by pirliameni committed.
IWiKit mailer I will rfffer to yom- lordship's
judgment for the true ei)>o)ition of the law in
thb case, is the Book we call The Register, od
WJthsrity respecceit, it is the roDndatian of all
auf writs at the commoD la* ; I bring not the
book. Ib this book [here l« oiie writ enith [bus,
* Rex, &c. Quad repiar' fiic' A. nisi tuenl per
* Specude nandalum dommi lept.'
JuaCice Doieridgr.. In what writ is that
* De homine replegiando f
Attorn. Gftt. Yes, in the writ < De botnint
*rep)«fituMlo;' and there is anoiherwritdirect-
cd to UK comtAble of Dover, in the very gnmi
words ; by which it appears that they that are
■npri»oiied by the king'd comioand, ' non SDiit
* replejiabiles.' Mr. Fitzberbett, agravejud^,
wid IS in ajitboricy with us, penisinc these wnis,
«iprea9ed ti in tbtse words plainly : " There
«ue MWie cases wherein n man cannot have this
writ, alihougb be be taken and detained in pri-
•on; US if he he taken by the death of a man,
•r if he be taken by the Commandment of the
king's justices;" and mentions not CMefJaft-
lice ; wkich I brliere is to be intended not of
(he chief of the court of judicMore, but of the
chief justice of England, far there was such a
-oae in tho^ days. Thus, my lord, jou eee the
opinion of Mr. Fitxiierbert in this cme.
Tlie n«t thing, that 1 will she* your lord-
Chip, is tne opinion of Mr. Stamford, in hisPleas
of the Crown, fol. 78, where he sets down ihe
Slatuteof Westminster primo, and Chen ha adds.
That by thiiit appears, that in four cases at
the common law a man is not replevisahle ; in
tbnse that were taken for the death of n man,
or by Che comraandnicnt of ihe king, or of his
justices, or of the forest : and there he saith,
That the comnuindment of the king is to be in-
tended, either the commandment uf his mouth
or of bis council, which is incorporated to hko,
and speak with the mouih of the king. — My
lord, I shiU de>ire no better commeniarics upon
a law, than these reverend grave Judgps, who
have put Boi>kj of Law in prinr, .iiid such
Books fis none, I beliere, *ili my llieir jud^
ment) are weak .
The noxt thjng I shall offer unto your lord-
diip, is this. That 1 cannot shew with so great
Biithnrity as 1 have done the reet, becaase I
have not fhe thinn itself by me ; but I will put
it to your lo^d^hlp'» nxoiory, I precume yon
nay wellremeinbGiit; it is the resolution of all
tlieJudses,«hich*HsfpTenin tlie34tbofqueen
Xlimbeth, it fell out upon an unhappy occasion,
which was thus: (he Jni^et they complain that
Sherift anil othi'r officen could not execute the
process of the l.iw as they ou^ht, for thai the
parties on whom «ucb proceis stiali heexecnted
hereupon petitioned the Lord Chancellor, that
be would be a luitor to her majesty that notiiing
ba done hereafter. Aod thcreapoo the Judges
w«r* deiiMil to ■taew io what wweMew tbai
were contmitted itere not bailable, whether
upon the commitmeiitoftho queen or any other,
—The Judges make answer, Thnt if a man shall
be committed bylhe queen, by her comroand,
or by the privy coancil, he i> not boilabie: if
jour lordihip nsik me what authority I have for
this, I can only say, I hare it out of the Boole
of the lord Anderson, written withhis own band.
My lord, 1 pray yoa give me leave lo obserre
the time when this was done; it was in a time,
and we inay truly call it a gnod ttme, in the
time of good queen Rliiabelh, and yet we see
there was then cause oi complaint ; and there-
fore i >^ould DOC have men think that we nr«
DOW gronn so bsd (us the opinion h we ore),
for we see that tlien in those tiroes there wat
cause of compbiini, and it may be more than it
now. — This, my lord, was the rrsolation of all
the Judges and Barons of the Eichequer, and
not by some great one.
Now I will npply myself tn that, which has
been enforced by the counsel on I he other side,
which Was the reason lint the subject hath io-
My lord, I do acknowledge it, but I must
say that the sovereign hath great interest in il
ton. And sure t am, chat the lirst slona of so-
vereignty was no sooner laid, but this power
VBSgiven to thesovereign: if you ask me whe-
ther It be unlimited ; my lord, 1 s^ it is not the
queninn now in hood : hut the common law,
which hath long flourished under the govern-
ment of our king and hii progenitors kings of
this realm, hulh erer had thnc reverend respect
of their sovereign, as chttt it hath concluded the
king cat! do no wrong: and as it is in the lord
Berkley's Case in Plowden's Com. 316, b. it »
part oi the king's prerogative that he can do no
'rong.— In die 4c)i of £dw. 4, fol. 35, the king
is also
1 tiie
lord Berkley's Cnse in St Hen. 8, Dyer, fol. 8.
The king cannot usurp upon a patron, Ibr the
common law Itath that reverend respect to him,
as that it cannot conceive he will do any in-
jury.— But the king commits a subject, and ei-
presuth no cause of the commitment : What
then } Shall it be thought that there is no cause
why he should be committed f Nny, my lord,
the course uf all times hath been, to say there
is no cauts expressed, and iberefore the matter
is Dot ripe, and thereupon the courts of judica-
ture hare e*er rented satialied therewith, they
would not senrch into it.
My lords, there be ■ Arcana Dei, et Arcana
' Imperii ;' and they that search too fhr into
■iheni, and make chemselves busier with them
than their places do require, they will make
themselves, &c. 1 will say no more; but I
shall be able to shew that there' shall as much
prejudice come to the kingdom, if God direct
not tiie heart of the king, which is in the hand
of God, as the nvers of waters ; I say, there
TBayasmnch hazard cometotheeonmonnealth
in many other things, with which the king is
tnuted, u in ibis parttcdar there can accrue to
the subtect.
If ktNUHl
, Ciooglc
4S} STAIKTRULS, 3 Chakus I. IGVJ.-'-broiiisii by Sir T.Dantd.ajid alien. [4*
loi^ ago, Dot fir roDOTed from our mennriM ;
•iiure tbcre ws$ a treaAon,and Ui« uHors tliercof
fled, some (a ihe cuurt ot' lUuDe, tonie to
Brussels, when it was te be pui ia execution ;
[be trtHOB beui diEcavered, one is iippretiend-
ed ufwii MupiuDD «f it, ftad ^s put iaio (lie
Tower, and tLere he lietb, and thinketh the
tJEie Tcij lAiigi and t cuinot blamtiliiai.
I( maj be be i* iaaooejit, and thereupon he
btiep a Habeas COTpus, and b; virtue of Uiut
writ be is brsuaht hither ; and will your lord-
lUp ibink it Gt or coaTeDieBt to bail liim,
■MQ the accusMioii agaia^t luoi inuat coiae
fiam bejoud the lea? I think you •vill n-
tber sa respect the prooeedingi of the ttue,
u thit you will believe< tlwte tbinKS are
iane with a cause, than ioquirc further of
tbe«. — Perwireoture «o<ue great misdemeaDar
BUT be comiaitEed, and some of the pariias
Bi^e aw«j, to U ProclHination caonot Over-
take tbem, and some are taken, is it Jit that
Ibey that are in priaon ihould be tried before
tbe priadpat be taked f
I "ill ifve you an instance, [tut lately' was
pat iMo my iniHd ; there be loine prisoners in
the Tower at this present, which were put in
tbitber when they were very jounf; : if they
AouM bring aD Habeas Corpus, they were im-
)inMiBed for State-natters, will ysur lordship
itlittr tliem P No, in that the stiite doth not
Ibint k fit lo lead them back into tJteir owa
countriej, you will cfiteem so reverenrflf of tbp
itate for commicdng children, that you, vill
believe tltat there is great reason of state so to
do, sr eke cbey would not do ic : maaj incon-
teniences may toUow, if it should be otherwise.
It may be, divefs men do sufier wrongfully id
pRwn, hot therefore shnll all prisoners be de-
mrt4 f Tbat were a great misCluef.
No doabt but the king's power is absolutely
•wr liis coins; if^en lie sliall conUDajid ha
ODiasball be turned ti> bniss or lentlitr, 1 crn-
fatii vere inconTenient ; but if the king would
itt it, tbe answer that I cuii make ii, ihat he
weoM not undo tlie kiiiKdnm : Uii cnn your
krdshlp kinder it, as beinE an inconvenience,
ifbew'julddu it? The Cnique Ports are fr^
fbitradick for all his kuhjects; but ihe kini in
lus cabinet uuderat.inds there is danger of wnr
la come apuli this JiiiiKdam, thertupiin he
^is tlie ports, that no man can go out ; slinit
tke iBerchHDt say this is injustice in the kin° }
Aad as in this, s^ in many other particulars
thii may appear, but I will not go toe high;
sad therefsre wc are too wise, Bay vre are ion
inliih, in Uiidertaking to evniaiiie raa tiers of
itate.to which we are not born Now, ray lord,
I come to onr book-cases, by which it appears
■hat oar kia^ m.iy do, and uatfaiu can be said
sgBDSt it, but iie will nnt do it; (he king may
ftiina all rraitars and tetnns, and ifhc ^nuld
4(1 it, ninj not the sahjecta say, IF tlie kini do
lUt, the faui »ill n>er«nme the good} Rut
•haQ any ray. The king cannot do Ibis } No,
■emay only asy. He mil not do this.
Hie kin|[ may exempt men from the office of
lUri^u not ^ii iBCDm*»i>iMtf Aad may it
not be said, be may ciesnpt ten in • shire, and
(hen tbe bunleu ol ihe country shall rest ■pan
the meant^r sort of ptnule i can aoy man iwy
more to [his, llian that he will not do it f — Id-
heriiances are to be decided npon trial, the
king ma; exempt private men ftura being oi ■
Jur7 ; but if be exempt all mcDr who shall tr«
our causes? for it is to be preauiaed, that hm
will not doit.
But to our case : By the statute of Mngn*
Churtu, no man shnll be pot out o[ bis Free-
hold, &c. But if tlw king will do it, uiosi nut
(he party that is sa pui out go lo the king bjr
peiitiou I But you will say, It is a peiiiiun of
right; and It oiay be [hese'gentkiiieti's is so;
admit it be, yet when such a petition comes to
ihe king, must it not be answered wiihiheic
wuidi. Soil dnjil /ail ai parte 1 And whan
the king will give thai wuriaat tor it, iktn chej
must hnve it done, and not hcrore.
And [his miiy answer a peipctual inprisMK
ment, aikd God forbid that this should he ao%
and QOw, my lord, I will trtiuble yon no longer,
but I will |a to precedents. Pncedeuti I
knuiv prevail much, and rule in many cases;
and if the precedeiili. tliey cit« were noPiuiaiD.
terpreted, I ahuuld tbink they had said a gteat
But, my lord, I will answer then- piecedents
with precedents ; nny, I will shew yoar Inrdsb^
that the (jiecedcntfi which they havi. cited ue
no ptecedcDts for tbem. — iliid, my lord, it is a
dangerous thing fur men in maiEtrs of weiKhC
to avouch precedents witli coolideiice, when
they m;ike nntliiug £br them : for, uiy lord, pre-
cedcDtiare now bt- come almost proclamatioBs^
fur tbpy aJread} run up and donn the town ;
and yet they know hut part i>f ihera, and not
all, and I think if they kuew aU, men woukl b*
But, my lord, I will now crime to these Pre-
cedents, where I m»y say ihcv li»ve not denli
frtely with me, for tiiey Jiave vhewed me many
precedents more ihan tliey mentioned liere,
and it may i e ihey have done ihe like uoM
your lordship. They ollet^ed but 8 prece-
deiiis betbri- your lord-ihip, hut they baie
brought 16 uuto me: for thtse eight oseatiiined -
here, 1 mil take then'io order us they were
cited, and >ms»er.
mitted for -uspicK
pressed in the warran' ; and then, my lord,
tliis IS clear, if the kin^, or the l^rds of the
council, will elpress any tliii^ within your
liirdsliip's jurisdiction, there is tuad eround foe
your pniceediiiBS ; but wlicn there is nothing
expreased, wheti.er you will fudj^ what tlM
cause of ihenarran' is, I will Ifave to yoor
lordship's judpnent ; but it appears this was tlia
cense, and fiat lie was delivered.
The next )irecedent was 33 H. S, Itot. 57,
and it was Parker's case: and it i^ true d)4t
his comrnttment appeared to be ■ per'speciats
' niflHil— d— ini regis' ^Mtt it wm «Im pto-
47] STATE TRIALS, 3 Cham-bs 1. lVi7^ProcadiBp mlbe a,baa Cmpa, [49
poaed to be ' pro pace et lospicione felnnJc ;*
and die slgnifi cation of ihe coimnand wni given
hj Mr. Peck of ClitTord's^Iiin : but there [be
wamnt shem the csiue of the cnmmitment
was for the peace and suspicimi of felony, and
therefore lie wm bailed.
The next Has in 40 Eliz. Wendon's.case;
but, mv lord, tbat commitment iras out of the
Star-C hamber bj an ordinary courae ; then
they cited 8 Jdc. Thomas Cisar'a case ; he iu-
de^ was committed by ' speciale mandatum
' domini reffis,' and brought hiiMabeasCurpns,
but the Koll sailh ' remititar :' and is that a
•nurant for them to say that he wBs delivered }
Then sir Tho. Vernon's case was dted ; and,
taj lord, when we l6oked into the Records, vro
fbuiid that he was committeii for suspicion of
treaton ; and he was tried for it nnd discharged,
Tlie neat precedent was »ir Tho. Momon's
case I I wonder that they did cite that, for he
was committed by the lords of the council in-
deed ; but tlie ground of it was suspicion bf the
death of sir Tho. Overbury, and lie was dis-
charged again br the lonis of the council.
Certainly if they had known this, they would
not hate named thig as a precedent.
The neiE was Reynor'i case ; he, my lord,
was one of the Gun-Ponder-Treaion, and yM
libere was a warrant to discharge liim too. And
tberefiire what tliese precedents are, I shall
submit to your lordship: I mu»t confess, when
they are cited together, they make a peat
uoiie; but when they are examined teterally,
they proce nothing.
My lord, there ii one more precedent that
was cited here before your lordship, and I hope
that one shall be ai none. It was mentioned
to be Laurence Brown's Case, 30 Eliz. I know
not wbst it is, but it is like to be of the same
value as the rest; ' Pro certis causis eos moven-
• tibus, &c,'
Aod thus, my lord, t have gone (hrougli those
trecedents that were alledged here before your
ird^ip ; and now I will come to those prece-
dents that were brought to me, and not men-
tioned here.
- The first was John Browning's case, in 91
H. 8. , My lord, these precedents came not to
me before Saturday last, about candle-lighting ;
and yesterday was no time&tting to sesrch out
precedents, and bow'could I liien search for
Ihisf
The next was William Koger's case, of the
same time. Bnt the cause is expressed to be
for suspicion of felony, which is a cause within
the jurisdiction of this court.
Newport's case was the like, in 4 et 5 Phil.
rt Mnr, and so wai Thotnas Laurence'* case,
9 Eliz. and Edw. Hercourt's case, 5 Eliz. which
was for suspicion of felony. R. Beckwilh and
nut Bartwiih, a* was cited, for tliey have mis-
taken both names and matters, was committed
' per specinle mandatum doDiini regis;' and
the Record saith he was bailed. But it was
by reason uE a letter from the lordi of the
council. ' «
Tlie cauw of Peter Man's commitnent in the
4 and 5 of Philip and Mary, i4^>ean totbe fbt
suspicion of felony and robbery.
for Reynor'i case, it is the aaxae with Bcck-
wiih, and were both for one thing.
In the 8 Hen. 7 one Roger Cherry win com-
mitted ' per mandatum domini, rc^is,' and it
was for acriminnl case; and he wis afterwards
indicted nnd acquitted and deliiered. And
there is another precedent thereof, that siith,
lie was ailerwards arraiEoed, condemned, and
banged i we have the Record of it.
And now, my lord, I will iihew some prece-
dents on the other side, vrbeiY men haie been
commitied by. the couiiDaDdment of the iing,
and by the commandinent of the council, aiM
bate baen delivered again byth«r directions:
andoftliiskind there be two in the Tower, that
as ihey were committed by warrant, so by wai>-
rants agaia for their bailing they were deliier-
ed ; ibe offences were againkt the forest, ami
for murder.
In 4 E. 3, Kf. 4, Edmund de Newport 4ti
Essex was indicted (br an offence committed
by him in the Forest. And M. 7. John Fox
was hkewise indicted for an offence by him don*
In the Forest: end there be two warrant* to
bail them.
M. 90. John Cobb was the like, and there
was a letter from the king, ' Quod ponatur in
' baUium usque ad proximam attisam.* Tbe>e
were offences within Westminster primo, Uld
there be several warrant* to bail them.
The clerk of this coart hath many records, by
which it appeareth, that many have been com-
mitted by the com^ird af the king and of th«
queen, and of the council, and brought their Hb.^
beas Corpus; and theguccess was,thatmaiiyof
them were committed lo the same prisons, and
dirers were committed to the niarihal of thia
court ; the reason was, for that many of them
were to appear here, their cnoies being triabi*
liera ; and it would have be«n a great trouble to
send ihem back au far to prison as into the coHn~
tries, and therefore ihey were delivered to th*
marrthel of ibe king's housiiold: again, manr
had their trials in this court, and srime suffered,
and some were delivereil by special command,
ai they were committed by special commaad.
— The number of these of thii nature are in-
finite that hnve been ii* our times; we have
found some forty precedents of men committed
out of the Chancery, and by the high'Commi»-
sion, for contempts, and some by the barons
05 the exchequer, and sifiDe in London, that
have been brought hither by Habeas Corpus.
Of this I shall observe, that in the 11 Jac.
there was a private constitution in London,
made between the white bakers, that they
might live one by another, and the one not to
invade the otbe/s liberties ; and for contempt
against (his ordinance, some were committed
topriion; asThomssHeaning, aodLittlepage:
they had a Habeas Corpus, and the cause waft
shewn to be by reason of ^e said constitution,
and thereupon the prisoner* were NDt back to
I.jindon, to abide the order of the mayor. For,
my lord, this cootl hiih bees ever nreful not
«9] STATC TRIALS, 9 Chaum I. 1027 .—inmght fy Sk T. Sana, and othri. [50
these geDtitnwn miy be reiaiuM, and left to
go th^rigfat way fi^ their delivery, nluchii \\ytt
petition to the king. Whether it be b PatitKui
of righc or of grace, I knaw attt; it mmt be, I
am sure, to the king^ bota whom I do person-
rally undentandthHUhesc gentlemen did never
Cet prcseot any petition Ut bim that cnme to
ii kDowledge.
L-CJiatia.' Mr. Attorney, thus much we
unit say to you, you have taken a pvat deal
of paiui, you havmg had so *liort a tin>e to con-
lider of tlii» caie ; it ia a case of very great
weight and eipeclatlon, -nod we do not intend
that you diull expect long for oar reioliitioD,
for liiHt these gentlemen are in priaon, und de-
tire no doubt to know nbere they nuet trust;
I bope we ^11 resolve according to the rea-
,ti> euiuBB the Dewaea vf tbC'ChaDoery, or
CovnorRequuo, but have oaty looked wlicEher
the cause rMurned be wttbin the jurisdiolion of
thiscourt; nor have ibey called ill (fuestion the
by-lain and rtHiatitutians of Lnnduo, but they
wad them bauk to ibe court of JDstice that
oomoiiiieth them. — Aadhaib (bts conn been
Ml (atetnl of dieae inferiour couttl [o this which
is the chiefs and when the Iking, who ii the
head of jiMtioe, shall commit a man, shall not
Uwy be ■• carerul to do the like justice to bim 1
. Ak ithen the king aaiih to them. The commit-
iHot wat by my warrant and coainiaiidment,
■till yuu qneMioii this, and whether this com-
BlbMBt Ml good or no? i hope you will not.
And iiow,aiy lord, tuucfcing some Precedents
■hich IsTe been taken out of their r>wn shen-
ia^ I shell make it appear, that as they have
toCD ctoKDicted by the king or council, so the^
kad mfraoti alio to diidiaige them : and they,
?lord, are two ancient records ; the 4rsc is T
7, 8oL e. the other, Itoi. 73. The lirtt wai
Tbnaia BratMi, be wot committed to tht
UaBhaliea, ' per mandntum dommi re^is^ et
' aliii certia de oausis i' aiuf afterwards th« re-
conls say, ' DomiBus lA quoad chase relax>
a,' And be wis bailed and
HyJonI, I wiQ conclude; I couM be infinite
at th»caae in preocdeots, but enough is enough,
yoOrlonUhipknoncth the wnght of precedents;
ais not enni^ to shew this wu done, hut thif
losfaew tbe reason ^by it was don«. I will
MubleytKir lonlihip^no longer, bat ifuiy man
•hiH doubt whether that or any part thereof
be iruly recited which hath been said louc^iing
. dK'Kecoid* or Statuies, I cud say no more,
fel that the StatBl«9 have b^n read, and tbe
Records are ready sotted out to be jeen by
yMT.lordship.
IdsU conclude (whnt I shall say) in
ease, toannrer t lie feat rather than' the just
ponnil of them thai say, this may be a cause
«f great danger, *-ith the wotds of Braeton;
*ko ^ke not to flattei* the present age; lib.
1- cap. 3, in tbe eUd, speaking of a writ foi
wrong done by the king to the Subject louch-
ia; bnd, Ete hadi these wordk; ' Si jodicium
'«r(ge ce^stalnr (cum brera non currat contra
■ipum) locos erat supplicationi qnod Ikctum
'MafB' eortipit et 'emeiidet, quod qnidem si
' noo tecerit, satis sufBcit ei ad poenam quod
'douinom eipecret ultDrein, nemo quideni de
'fietis toil prsstimat dispolnre, mJlto fortius
' (Mitia fikctum suum venire. '—My lord, I Eng-
hAitDoC, for I apply it not, any man may
make use of it as he plenseth; and so I con-
dode both for the point df exception, nnd
natrer of the return, which! refer to your lord-
Ayijodumeiit, whether alt iii the return but
>«e wurds, ' per speciltU mondatum doraioi
' Ktis,' be not superfluous. And forthematter,
•beiher these genttemen be bailahle or not
ktilaUe, I ha»e ihewAt your lonWiip, that hy
*ke practiceof aB ages they are not bailable, but
■»e been rtimanded bftcb.
And therefore I' pray y»ur lordship, that
of former tinjes, and accnrding tx
sciences ; bat this I must tell you, as I did
those that ai^ed, you must bring in your Fre-
cedeoiE ; for though we have seen some of
them, yet some of^them we hare not seen,
(herefure we desbfl that your servants or your-
selves do attend, and bring unto us after dinner
those precedents you have laealioned on the
king's part, fw we intend to meet this after<
noon, and yotl ahall have our Opinions to-mm^
row : and i must tell you on the other side,
thnt this cause being of such weight, counsel
sbonld be Wary bow they speak any ibiiig to in-
veigle the court. — Touching such precedents as
you uT^d in some of them, we know there i«
umetbing urged which makes not tbr you, to you
have omitted ^ome muceriat things to be shewn ;
I speak it t6 this purpose, not to prejudice the
' cause, or lo deliver my opinion, which become*
me not, but to shew, that counsellors sliould be
carefidi and this I dare wy, there is matter
in someofthc precedents themselves thai leada
to another ca»e, if tliey were entirely cited . —
The TeRn grows away, you shall not be lone
In eipectatioB, we wil! meet this afternoon, sno
give you our Opinions to-morrow morning.
Mr. Naye. We desire that Mr. Attorney
niay bring the precedents of 91 F.liz. with faiih.
Mr. Attorney. I will ihevt you any ihiog;
but, my lord, 1 shall be bold to claim the pVi<
vilege of my pluce, as the king's counsel ; when
■tbeling's Attorney hss spoken, there ought to
hit no arguments after that; but if you atk to '
see nny ibing, you shall have it.
X. C. JuXice. It is that we aim at, that
truth and right may appear, nnd not to satisfy
the ohe or the otfaer part ; but it is not desired
to make use of it by way of reply, but for sa-
tisfaction only.
Serj. Branulen. My lord, for the precedents
[ dted, I did tliink they should hafe been .
hrvugbt and rrad in tlie_ court, that your lonl-
ihc Reconlsand Precedents shall be brourht t
therour^ andreadopenly.for the court will ihii
wrong you, and you shall see the dillerence be-
n them, and your relation of them; nor
unit not wrong ns with ywir writlea i*-
'51] ilTATE TUIAUS, SCharlhI. \6Tl.—ProaxdmgiolnlitJIabeatCorpM, [M
Wg Qumot jadee npon tumnan nor reporO,
but opoa that vhich is before ufl on record;
end uierefore ttie Ratnni l> eiaminabla bj m,
nlwtberit bs lufficient, ur nni.
'1 be £<cepUon* which litic been uken U
this Ketuni vere two: Uieone for tbe^Dim,
the other Tor the Subnance.
On "Hiundaj the 38th of November, Mi-
chaelifl, 3 Canili Regis, Cliief-Justice Hyde,
JosCice Dodeiidge, Justice Jortei, and Jwiice
Wbitloclt on the beach: Sir John Corbel, tir
' Waller Earl, tir joha HeveDingbuni, aad sir
' Edmuod Hampden at ibe bar.
L. C. Jailice. I am sure you here eipect
the resolution oftbewhnte Court, as accordingly
Teiterda; we told jou you shciuld have. Tbii
IS a case uf very great weight and zmt eipect-
ntion, lod it bad been £t we sbuuld have used
' more loleniii ai^woeots of it than now liir the
abortiMH of the time we can du'; for you iiave
been bag in prison, and It is £t yoa ihould
know wliereuQtci you should trust : I am sure
you expeet justice from hence, and God forbid
we should Bit bere but to do justice to ali men
according to uur best sliill and knowledge, for
it Is our oaths and duties so to do, and I am
•ure there is nothing else eipected of us. We
are sworn lo luainlala all Prerogntivei of the
king, that is one branch of our oalh; and we
' are likewise ^woro to odtniniiter justice equally
to all people.
We cannot, I tell voo, deliver in soIcoid Ar-
. gumeats, and give the Judgments of eiery
of us louchbg this CRSe, as the weiglit thereof
requiieth; but we have met together, hiuJ we
have duly and seriouslj considered of it, and of
nil that which bns been spoken of on either side,
nnd we are growii to a Resolution, and my bro-
thers have enjoined me to deliver to you the re-
tolution of the whole coutt; and therefore,
though it be delivered by my mouth, it it the rc-
solulKiu of US all: [hope I siiail not mistake
■ any thins of thdr intention in my delivery ;
but if I do, they git bere by me,' and I shall ool
take it ilUf they right me. Therefore I must
tell you, there nsib been many points learnedly
argued at |he bar, which we shall nut touch, or
give our resolution upon, but bend ourselves to
the point in judgment here.
These thrte Statutes, as for example, tlie
Statoie of Magna Charts, SS E. 3, aadse £.
S, and ibe Statuic of Wesmimter primo, and
divers other statutes thai have been alleilj^ed,
and particularly disputed of, we all nckiiow-
' ledge nod tesohc, that they are good laws, and
. that they be in force : but the iiiierpretatioa of
them at this lime belongs not to us, for wc ore
driven to another point ; and though llie raean^
ing of them belongs to the one way or the
other, yet pur judgment must be the same ; tor
that which is now to be judged by us is this,
Whcllicr one that is committed by the kiog'a
autlnrity, and no cause declared of his com-
mitmeni, according as hen it is upon this re-
. turn,. whether we ought to deliver hini by bail,
or, to remand him back ajisin? Wherein you
must know tliis which your ooun^l will tell
you, we can lake notice only uf ib
. and wlien the case appears to coni
otherwise than by the return, w
buimd to trxaiaiue (he trulli uf the i , ._.
t)ie sufficiency of it, for there is a trreat dilTer-
eiice between the sufficiency and tlie truth.
the Form, whether it be foniMlly re-
tnmed or no, for it is not retained, as it is said,
positively and abaotutely, that they were cou-
mitted by the king, but as it appears by a war- '
rant from the lords of ibe council, and then
there seems to be a coaimdiction in the re-
turn.— For first it saith, thry were committed
by the king's command, and afterwards it >l-
ledgeth it (o be by a warrant of the lords of the
councd. Bud so it is repugnant.
Now we conceive that this is a positive ud
an absolute Relum, and so the reason is, that
he lir^t returns that tbey are detained by the
specif command of the king, and if be had
ceased there it had been positive; now there
folloHs, that this was sigoified to them by the
lords of the council. This is retnmed, to ascer-
tain the coutt that be returned the cause tmly,
and to sbenr us that we should not doubt tM
verily of this return; and not to shew to OS
that he Imth no knowledge of the canSe but by
the signification of the lords of tbe courtcil :
according to that Case of tbe bishop of Nor-
wich, touching the Excommunication, h^ mint
testify his own knowledge, and not ' contiuetur
' iu archiris :' so a Sheriff must not return
quod mandari ball', &c. and be gives tbis »b-
>i'er, unless it he a baililf of a liberty that bath
And BO here if Ibe Warden of the Fleet hsd
returned, (bat the lords of the couDcil had sig-
nified unto him tbnt bis prisoner was detained
by the king's commRndmeoi, that hod ben
sufficient: hut when lie returns positively at
the first, [hat it is done by the king's direction,
heslwns afterwards tliat which shoold make
It Hppcnr Ihnt he deals not Falsely ; which
migliL hitve been omitted, but being meBtioned
that that is the scope of it, tmd not otherwise,
the return is good and positive.
Nuw then to the other Objections, becanse
be speaks nothing of the c-.ipiioa why they were
taken, yoa know ii is the usual return of all
officers to answer the p«iiiE in question; then
is not one word in ttie Writ that demands the
cause why they were taken, but why they ore
detained : so that the point in the writ is suffi-
ciently answered; for though someliines it is
nccessRry that the cause of the caption should
be certified, yet sometimes it is soperduous :
but in pur CDse the cause of the detention <*
sufficiently answered, which is tbe demand of
the H rit, and therefore we resolve tJiat llie fom
of Uiis return is good. Tbe next thing is the
raiiin point' in Uw, whether the substance or
matter of the return be good or no, wli««o
the ^ubstallce is thin, he doth certify that they
■rt detained in prison by the special comsaand
of the king; and whether this be good in iM
or no, that it the question.
U] STATE ntlALS, 3 Chauu L ]«».— drwjfti by Sir T. Darnel, and oiken. [H
To ilMparpoK, ir jou muanber (hit point, I
sij JOD did not eke mny Book or Case in pnni,
bai manj precedents, wtiich, I cnuless, Hre su
■UfMiMany Book-cueiiforBook-caies. Icoii-
fcH, uc tkkea and lalected oat of the Kecordt
Md Uetoliitioiu(ifJiHl|ef,Biui tliBt is itwiiicb is
ID our books, tboDjEli the; be not w obiious for
**eT7 «jc, but ■!« Iband oBt b; p«ins nnd dili-
gtM tMicb, and bang prodaced, nre of the
»■• and equal Bnthorit; with our Boak-oa*es;
hot t)M iniut be nben Bccords are bniuglil
bthloUy mad eotiral^, so that tlie court msy
Now
• the Freccdentf , lou urged thrm lo be
sj, and so fuiJjr to the point, that we may
(faerettj tee that it i* good to bear n-bst can
beaaid on Uilh sidei, and for to hear all, and
licw tbe Records themselrea; and ihererore
ire rcqidrtd joa to bring tbe Records to us,
and 70a did to, and yoa broo^ht us more than
joa meaboaed here; and ne haTC pertued
than all, that thereby we mi^ ht see wliether
the cuun be fiuchfully dealt withal or 00 ; for
thoppb ciHUUwllais tnay urge a book for tlieir
own adraotage, yet it is the duty of tbe court
toseaaoddiitini;ui«hof tbeiranegationsHs tjie
ttath may appear.
« laneh as you
oiged tbea for; for if you remember, you urged
MMie preoedeuts 10 be, that where men were
oBBUMtted by tliB king, or by the lords of the
comniued, tliey were deliTered. — This is in
ifiea our case, if the precedents aSinD tbal
wbiD a man* is committed by the king's com-
nand, and no just cause is shewn, that upon
sach a general return tbe party shall ipio/acto
be delivered ; for if tbe return be nut amended.
Aen be shall be (liscbugeij.-^lf'i>r |iithoug)i
nea come with prepared minds, ytt the pie-
paradoD of every man's heart ounht to submit
10 die truth, nod by tbe precedents, you tbnii
•ec if it be *o ns you have allied ; but tikis I
dare affiim, thnt no one of the llccurds that
yaw have cited, doih inforce wbM you have
OKKladed Out of tlinn, no not one ; and tliere-
fare as you liare cited Recordl and Precedents,
Precedent* sbatt judge tbis case.
I wiU shew you bow they differ from the Re-
conb: jou have cuncluded, when the king
iMlb cnmmitted one, and eapresseth not tbe
gansr, ttie court tialli delirered the party ; but
yoB timli see the contrary concluded in every
case that yoa btite put: where the cvuie ul
the fUHnmitineDt bath been expressed, there the
party hath been delivered by ibe court, if the
caae so required; but where <liere hath heen
BO cause expressed, they have ever been r^-
Banded ; or if they faaie been delivered, they
hare be^ delivered by the king's direction, ar
by ibe lords of the council 1 if this fail aow iti
proof, yiNi see yoa havo gathered Ikir conclu-
>i»n oat of the Kecnrdi ; Sod that yiu may
«* that this is BO, I have broucht the Records
with DM of your own propounding, and 1 will
p> tiuoajh theiD from point to point, and then
jadge jounelves of the cue.
. It is not mBteHsl whether I call for ibem in
that order as you produceil. llicm or ni^ oud
therclbre 1 will take them as they arr, first or
last in tbe kin^s reign. They are in number
many, in tbe time of H. 7, li. 8, Mary, Elii.
J will shew you ur Thomas Monson's Cuso
in 11 Jac. which wss iu all onr meniotic*.
I will be^n with Hill. 6 II. 7, K. Clierry't
Cnse ; you vouched it to this purpote, That
Cbcn7 being cooinitted by the mayorof Wind-
sor, was brought hither by a llnbeus Corpus,
and tbe mayor returns that be was oonimLtted •
' per mandatum domini r^is,' and that there-
upon he was delivered; but yoa shatl find by .
tlie Record, tbat he was committed by th«
ma^ or at the suit of the Ling f.>r felony, for
which he was afterwards indicted, bruugbt to
trial, and Chen ditobarged. (Vide this Record
in Mr. Selden's A^ument in ilie parli^iujbnt,
S & 4 Car. Itegis, and so all tbe rest pottea.)
The next was 19 II. 7, Urswiek's Caw ; and
you say he was brought hither by tlie Warden
of ilie Fleet, who; as you said, returned that he
was com mil led < per innndaiun dotnioi regie,'
and you said he wbi ditcliai^, but be was
bailed upon the Lord's Letter, and brought hi-
ther to record bis return, for be was bound to
appear here, and then he was discharged ; hut
that WHS tbe cause of bis bringing hither. (Vide
tlie Records as albretaid.)
Tbe next was Hugh Puin's Ciise, in 31 H. 7,
and that you urged thus : You say tliat he ivas
hrooght hither by a H. Corput by the Warden
of the Fleet, wlu) returned that lie was com-
mitted by the king's council, and he whs
bailed : now, we fiud that lie nns commiiteJ
bjp them fur suspicion of feloiiy ; and that
cause was declared, and be was bailed ; so ihat
TOO see there was a cause eipresiied. (Vide the
Record) aforesaid.)
The nr^t is 3 H, 8, Thomas Beckley, and
Robert Harrison's Case ; these you saiil wer»
brought in hither by Gennte, earl of Shrews-
bury, and I'hnmni earl of Surry ; and the re-
turn HUB, thai ihey were committed by the
command of H. 7, and that they were bailed ;
but you shall find that th^ were committed
fur suspicion of felony; and tbni Harrisoa
was couimiited by H. 7, but it wns for Hami-
cide upon the sea, and so the cause is express-
ed, and ailerwards he was bailed. TheiiGxt
HiisiuSi H. 8,J<ilin Parker's Cdse : you urged
it to this purpose, Tliat he was brought hither
by H U. Cnrpug by the slierifis of Luudon, and
thiiy you eaid returned, that he was cnmniiited
' per spctUaie TTiandaium domtoi regis nuncia-
' turn,' &c. by Robert Peck, &c. The cause
why yr.u urgeil this was iwo-fuld ; 1. That JM
Was committed by the king's command, and
ret be was bailed: idly, 'Ibat he was com-
mitted ' per mandatum dumint re^is nunciat','
per such a une : but yoa shsll find by the He-
cord lliat he was committed fur the srcurity of
tlie peace, and fur susuicinn of felony, and
thnt wit) the cause for "liichliewas bailed, for
he is bailable by law when such a cause ap-
pearl. (Vid« the R«cord as tfoiewiil).
55] STATE TRIALS, S Chasles I. iS'Il—hroeeedin^oniiellabetuCoiftt, [30
Go on to the mex\, uxA that ia Peter Mali's
CiBe, in tbe 3 and 4 Phil, and Mary ; you
urged tliBt to this puqKise, jnit s&y, tiikt he
ma brought by tlie Keeper of the Gate-luule,
and you say, that be icturued, that he wai
comniitled by the connnand of the Iniig and
qneeu't council, and thereupon he wnt bailed ;
but ^0U ihall lind that he was cammlit«d for
mspicion of felony arid robbery, and thereupon
he was bailed.
The next ta in the 4 and 6 Phil, et Mar. Ed-
ward Nevrport'i Caae ; you tdd that the Con-
etable of the Tower brought him hither, and
returned that he was committed by tb* council
of the king and qaeen, nod that be wntr bailed :
but you see by the Records, thw he was com-
mitted fbr luspicion of coiiiiog, which is baila-
ble only in this court, and tlierefore it wa« re-
moved nither. Yet this I must tell yon, that ic
■■ true, in one Record it appears not hot as
you have cited it ; but you may see how it is
supplied by another record, and the cauw, nnd
he was delivered by a pmclamaiion. (Vide
both Records in Mr. Sctden's Argument).
Doderidge, He could not be delivered by
prodamulion, unless it was ibra criminal cause.
L. C. J. (Hyde). Observe anotlier thing in
tbe Book, he a bfougiit hither by the special
command of the cunncil : so that although it
nppenra noi in the recnrd, yet if the king or
jords mean tu have hioi tried for his life, be is
brought hiflier. Then you cited Robert Con-
Unble'i cas«, 9 Eliz. and you said he wni
brought hither by the Lieutenant of the Tower,
who returned that be was committed by the
lants of the council, and thereupon be was
bailed ; but you shall find that tie came hiiher
' to plead h]« pardon, and he wu pardoned.
(Vide the 2tecord as afbresaid).
Thomas Lawrence's Case tn 9 Eliz. is the
same wiih Canslnble's, for it appears that be
was brought hither to plead his pardon, and he
was pardoned, and that was the caose he was
brought hither.
The next was in the 31 £lii. JoXn Brown-
itii's Case ; it is true he was committed by the
lords of the council, and be was brought by a
H. Corpus to ihe chamber of ur Christ. Wray,
diief-juitico, and he was there bailed.
llie next w^ 33 ?:iiz. \Vm. Rngecs; and
lie, you said, was brought hither by the Keeper
of the Gate-house, who returned, that he wua
cominicted to hira by tlic lords oT the cnnncil,
yet there was n cause expressed, and that was
for suspicioh -of Cuiningof money.
The next was in 39 Elii. Laurence Broome ;
you say ihnt he was brought hither by the
keeper of the Gate-house, who returned, that
he was committed for divers causes, moving ibe
lords of rtie council, and thereupon he was de-
livered ; but the Record is, that the return
also waiforsuspicion of (reason ; and although
tbe sutpicioi] of treason appears not in one Re^
cord, yet there is another (or it. Herevmi see
tbe cause of his cominitmrnt, and that be was
bailed, bat it was by the kin^s command,
Sffw Oct. ISchaelit. (Vide tfe Becord],-~
I blame bm yoa tfaat are of connael with
Eendeinen for ur);ing this Record, foi
IS not expressed in yoi
was comioitted by tite
Record).
The nert is in 40 Elic Edwaid Hareoan'i
case, and lliotnas Wendea'tt case ; I bri^
them together, because tbey are b«di is oac
year. In the 40 of Eliz. Uarcourt, yqn say, was
committed tu the .Gate- house by dM lords at
ihe council ; and tbe rcium was, that he was
ciOnmitted by tfaenl, ' Certia de caolil iptos
' moventihus ignotis,' and- he was bailed. —
Here is another in the same time oommiKed to
the same prisaa by tlie hirdi in the Star-Cham-
ber, it was 'I'homas Wenden's case; and he,
you say, was cummiUed b^theui, 'certii de
' causis',' (as the other wa«) and that ba waa
bailed; but yoa sliail find in.riienMt^ii«f tbe
Roll, ' Traditnr in hall'-ei aasensn ooneilii dt»>'
' mina r^DK;' and tbat was the relation oF
tbe queen's Attorney, so that yoaMehowllw'
precedent fits yuu.
The next are two laore eotaroitmenta to ttm
Gate-house, Beckwith and Heyner; tbey, you
said, itiere committed to tbe Gate- lio use,
broueht their II. Coi^as, and lite Keeper of
the Gate-hoiHe returned, [hot they, were eom-
initted by virtue of a warrant from' the abp. of
Canterbury, Henry earl of Northampton, lord'
n-anten of the Oiuqae Poru, and others of the-
privy-couucil ; requiring die suid Keeper to re-'
ceive tlie satd Beckwirh and Reyner into his
charge, until they should have furtlier order
troDi them in that behalf; and you say tliey
•fere bailed. (Vide the Reeord in Mr, Selden
aforesaid), — Nou- you shall see the direction Co
hail him ; he was bailed by the direction from
the lords of the council, fis appears by tbeir
letter. (Vide as aforesaid).
Now we corae to Coisar's Case, in 8 Jocobi ;
you uigtd that to this purpose ; you say he was
committed to ihe ManhHisea, who- upon n H.
Corpus retvmied, that be was committed ' per
' speciale mandatom domini regis,' and yoD'
say, because the return was so ;>enenil, (he
rule of the court was, that it should be amend-
ed, or ebe he should be discharged. I will
open to yoa what the reason of that rule was,'
.for tliat notice was taken, that the Keeper of
the prison had used n false return, and hod
usurped the name of tire king ; I know not
how, but tbe cenunitoieat was not by the kiirg's
command ; and that was the cause that be had
a day given him tn nniend bis return, but hU
body WHS rauaniled to prison, as you shall see
by the Record, f Vide the Record, tee.).
The last precedent that you nsed, was that
of sir Tho. Monson ; and that was so notori-
ous, and BO laic, that I marvel thai was oftred-
at alii it mnde me jenlnas of all the rest, lltat
was >o notorious; and now I have omitted
none ^ou brought me. (Vide the Record.) —
B^ this Recant you may see iliat he was com-
mitted by divcA brds of the coancil; uMtit
57] 3r4lT£ TltiALS, »CaAti.»I. itsSfl .^-bnngit by Sir T. DtmUl. mi others. [H'
■Mfartke «n]Ncion«f IliBdMtfaof «r I1)n.
OMffaurj ; Bod it i* notoriotitl; kaown, ^lat be
ms bfMgfat Mwr t» plaarf b'a paidon.
1 «iU DM uU joa tlwt 7«a rend nil Ui«m
aecedwiti, br jsu read /loiw, but nrgnl them
Wt bafint of ; bat wa required jou to bring
Umi 10 iM, and thej were brogght to uh, Mr.
CwbA brouglit tbcm lii bat ddc, nnd that Mi
&M I nerer mw before, nor ii he dow in mine
at, did ^aterds; brinf lu ose precedeiw to
OkfotfOhBi and it was sir John Brocket's
Cut ID 1 Jac. be fraa committed to ibe Oate~
hoow, Md upoa a Habeet Corpos, the Keeper
moraed that ' CenmiM' fiiit per wnrraDCuni
■ daninomm de privat' concilio, cujus (anor
'MfoitBTiahMt verba,' viz. 'To the Keeper
•«r the OatcbiHMr/ &a. (Vide Mr.' Sel-
dn*! pfccedeoti ; bat lee upon whM irouiid
b> »M bailed, it wa« a spedel commandof the
lordiof ibc couodl. Vide the Record).
Ttee are all the Records and Precedents
thu yoa aiiaiHered onto us in jrour Argnnwat,
Md thit wer* driirered unto us, Ibr I have
dwll UibM]; (rich you ; and now jm have
Mta ibeoi in the Etua, I (•oiiM have ani man
eg oTlhe conclawoD which you made the
d^, tbatwhen a man is committed, and
the case ool known, but it is certified to be bjr
Ike kii^s qiecial coaimandnent, and the Ha-
Imt Corpus is procuied bj jourselvet and
tfeal»i hj the king, that we can dischai^ or
pxprcssed, it is to be presumed
to be fbr matter of Mate, wbicb we cannot take
aolicear; you see we (tod note, no not one,
thii hitb been delivered by hail in the like
cues, bet by the 'hand of the kipg or his
direction.
If we shonlH ceoM here, jou see you have
aheini nothing to antiufy m, and we know that
foe that be of their conniel, will satisfy your
cSenti therein. But you sball see that we
biie taken a litile pains in this case, and we
■in riiew j'oa some Precedents on the other
ade; and I betiere there be 900 of this nature,
Ikatraay b« died to tliit pnrpese. I shall go
mrogade, and go bachwtirda id citing the years
of the precedents ^at I ahall mention.
I will begin with 1 H. B, Edward Page, he
WM broi^t hither by the Steward rif tlie Mar-
ihtlses, wbo returned that he vm cntnmitted
'per mandatum domini regis,' and he was
imicted, ao that he wm not delivered upon
■bs poend return, but be was remanded.
fit neit was IS H. 7, therv yon shnll see a
pecedeot wliere one wait committed, his name
*ii Thomas Yew, he wag committed for felony,
and ahu < per mandatum domini regis,' and
tks king's Attomey came hither and released
ik kii^ command, ami tberenpon he
Mr. Jfojn*. It is all one with Patirr's cas«,
L. C. J. No; for bere were two cnuaei nf
(lie commit nent^ Hubert was ihen tlie king's
Attorney, and lie signified in open court tlial
' e was ditcbai^ed by the king's command, luft
Poilea trnditur in bull' pro suspicione fetoniz.'
The nem was Humphrey ftoch,9 H. 7, Rot,
4. >ou shall.find it much to ihat' purpose as
the other was before ; he was imprJMined for
lullanry, nod by the coinmandment of the
king also, aad afler that tlie release of the
king's coinmandmeuc was rertlfied to the chiefs
Justice, he waa thereupon diacbarged. (Vide
the Oecoiti).
The neit is 7 H. 7, Thomas Brown, John
Rawliiigs, Hubert Slieruiuii and others, were
committed ' per miuidatum domini regis,' aail
fur felony, outlawry, and other causes, as ap- '
pears by the Records, and after the king re-
leaseth bis commnndmellt, and that the oat'
lawrv should be reversed, and for the felony he
was bailed. (Vide tlie Kecord).
9<i that you may see ihe offences mentioned
the Warreut for the commitment «ere tria-
ble here, and fihen the king releases his com-
mandment they were bailed for the rest, htit
they that were cocamitted by the command-
ent of the king nere released hy the king. -
In 7 H. 7, ih* cases of Wm. Bartholomew,
Henry Carte, William Chw*, aiid others, is to
the same clTect, by all which you may see, ihM
when the king rdeaseth liis commandment,
they were baited for the rest, and as they were
committed by tlie king's cummandrnftot, so
they wercrelcaied by tbe king's command.
Now here I shall trouble you with no more
Precedents, and you see your own *hat conclu-
sion they produce. ' And as to those Itroog
precedent!) alledged on the other side, we are
not wiser than they thar went hcfbre u; ; and
the common custom of the law is, the CununoD
Law of the land, and rhat hnth been the con-
tinual common cubtora of the law, to which we
ata to submit, fur ne come not to change tbe
law, but to submit to it.
lution of all the Judges of England, in 34 I^lir..
We have considered of the time, and I think
there were not before, nor have heen since,,
more upri^t Judges than they were, Wray uaa
one, nnd Anderson another; in Easter term
all
Excbe-
quer, in a duplicate, whereof the one vas ileli-
Ttred to the Lord-Chaiicelior, and the other to
tbe Lord-Treasurer, to be delivered to tbe
queen. We have compared our copies, not
taking them the one from tbe other, but hrine-
ii^ tltaro ; we have long had them by us toge-
ther, and they all agree word for word; and
that which Mr. Attomey snid, he had out .of
Judiic Anderson's Book, and it is to this pur-
pose, to omit other thing;, that if a man be
committed by the cumniandmeiit nf the king^
he is not tn be delivered by a Habeas Corpus
in this coDirt, for we know not tbe CuiM of the
M] STATE TRIALS. 3 Ca«LM I. 1627-8.— J
(Vida the latter end of tbe fint
pan of Mr. S«ldeii'* a^ument, ai afomaid).
But the questiaii now is, Whutlier we may
deliver this gemleiiiiui ur nut? Yoti s«e vrhat
hatli been tlie practice in nil the kiagi time&
berelotbrr, and jour unn Records; and (IiIb
resolution uf ail Che Judges lenclicth us, and
vhuC cun «e do but walk in ttie ^tejis of our
furcfnihers i If vou nsk me irhicb way yuu
shuuld be deliiereil, weaiiall idl you, we must
not counsel you. —
Air. Attorney h.ith told you that tbe king
luili done it, and neiruit hunin greut raattera,
and he n bound by law, and be bids us pro-
ceed by law, >s we are sworn to do, and so is
the king; and we make no doubt, but tlie king,
if you seek to bim, he knowing tbe cnuse why
70U nre imjjrisoned, be will have mercy ; but
we leave cliat. If injustice we ought 10 deliver
jDu, we would do it; but lyion iLe>e grounds,
and these lUconis, and the Precedents and
Ilesoluiions, He caauot deliver you, but you
ilLiist be remanded. Now if i hktre mistaken
ahy thiuc, I deaire to be righted bj my bre-
thren, 1 have endeavoured to give tbe Kesolu-
tionsof us all.*
■ PROCEEDINGS IN PARLIAMENT
LIBERTY OF THE SUBJECT.
The Gentlemen continued in custody till the
!9th ot' January following, when iiis majesty in
CiiuDcilorderad nil oftliem to be released; and
nrits being isbued about this time for electing
mcmbfn of paj-liBnient, to meet March tbe
ITlb, 1G97-8, those gentlemen who suifered for
the Loan, uere alecied in iniiny plticrs. On the
ITih of March tbe houteniet, ana air John Finch
wns chosen Speaker. On tbe 30ih, the liouse
' Mr. Wbitlock in bis Memorials of the
Enjish AtEiirs, p. 8, (eilit. 1739), snya, " Five
of the icnpiJsonfd genilemen, by Hiibeas Cor-
pus were brought to the Kin^'s-bencli; aod
(by their counsel assigned) tiiok ciceptiont 10
the Heiurn, " For th.ii it had not the cuuse of
tbeii Ciiuaiitiiient, but of their detainer in
priso 1, ' per speciale inandatum regis,' which is
no particular cause; and the Inw being most
tendet' of ihe subjects liberty," Noye, Selden,
Brnmston, Callhorpe, and others, who were of
count* 1 for ibe prisuuera, prayed they might be
release I and dischnrgnl. — llouth, the King's
Atlorni y, at another day nrgued in mainte-
nance nflhc Rflurn. . Hyde, L'bief-Justice, de-
clared the opinion of ibc court, " That the Re-
' turn wJMpoailive and absolute, by the king's
' special command, and the siguificatiou nf it
' by the lirdi of the*council is only to ioforin
' the court ; and that the Ilubeas Coipus is not
■ to return the oause of the iinprisonment, but
' of tlie Ueientiun in prison ; that the matter of
' this Return is tulHcient, and the. court is
■ II) ciuinini' the tiutb of tlie Return, but ir
' take it lis it is. Su llic Piijoiirr* were
' manded,"'
settled their CommitteM ; and theild wm
spent in opening tbe Grievance*, as Billeting
cil' Soldiers, Loans b^ Benevulende Mid Privy- .
Seal, and tlie iiapriaoaing ceruiii) GcnttcmcQ
who refused to lend upon that Account, who
■fierwurdi bringing their Habeas Corpus, woe
notwithstanding remnnded tn piison; uor did>
the biiuBc incline to supply his msjenty till '
these Grietauces were redressed. To wbicb.
Sir fieinfiiSi^fliotir spoke thus 1
'I hia is tbs great council nf ibe kiagtUuB,
mid here (if not here alons) bii majesty may-
see as in a Crve gUss lite state of tbe kingdom ;
we are called hither by his majesty's nrits to
give bim faithful counsel, such as may slancl
with his bonuur ; but this we Diiiit do witlioot
flattery : we are sent hither by the ctunmoiu to
iliscbikrge that trust reposed in us, by delireriog
up their just Grievances, and iJiis we must do
witiioiit iL-ar : let us not therefore be like Cain-
bvses's judges, who being demanded of their.
kini; wlielher it were not lawful for hiu to do
what in itself was unlawful f They, rMber to
please the kin^, than to dl«cliaive iheir owa
conscieuce:, answered. That the Persian king*
mi^ht do what tbey listed. This base flattery
tends to mischief, being litter for repiouf ihait
imitation ; and as flattery, so fear taWth away
the judgment ; let us not then be possessed,
with fear or Battery, ofcorrupbons the bawat,
Fifr my own pan, I sh^U shun both tliese, aod
speak my conscience with as much dut^ to hii
majesty as any man, but not neglectmg tha
public, in which his majesty and cne common-
wealth have an. interest : but how can we shew
our aflections, H-liilst we retain our fears? nr
how can we ibink of givuig of subsidies, till
*e know, whether we nave anj thing to give
or no ? For if bis majesty be pen^aded by any
to take from bis su^ects wliat he will, and
where itpleaseth liim; I would ^dly know
Hhai we bave to give J It ii true, it is ill with
those subjects tliat shall give laws to their
princes, and as ill with those princes which shatl
use force witli those Uw!i ; tJial this both been '
done, appeareth by the billeting of Soldiers, a
tiling no tvai udvBDtB)(eou« to his majesty's sei>
vice, but a burden tu the commonwealtJi; this
also appenretli by the last Levy nf JHosey
againtt un Act of VarUamrM. Agtuu, Ur.
Speaker, nhat greater proof can there be of
(his, than tht ieipr'aotaarnt ofdweri Gtntlcacn
_for the Lmtn, who if they hud done the con-
trary for fiear, their fiiult bad been as great ili
theirs tlint were the prnjoctori in it ; and to-
countenance thpse protwediiys, hath it not been
preached (or rather prated) in our pulpiu, that
all we have is the king's Jure Divina, say these
limo-servcrs ; they fDcsake their oivn fu net lun,
and turn ignorant sUieim en-: we see liuw wil-
ling tliey will be to cliause a good ci
for a hisliopric ; and M r. Speaker
with other
61] ffTATB "IBIALS, S Cbaiim I. Hi29-8.— <fe LOxris tfihe SOgtet. [69
Council, ravHliing at once rbo spheres of lU
ancient EOTeniment, impriloning ui aii/iout
either btnl or bond ; they Imre taken From ui,
what? What «hall I hj indeed, what linve
tbev left (U? All mean* ur supplying Ibe kin;^
■nd ; ■ ' '■
; hi* aia}eM;r
tboui, andlugpeopl^m their ettotei at home-,
bat will ^u knon the reason of all this t Let
ulmk back to-the aciion) of former princa,
and ve dull find that tboie prince* have be«ii
.iB|reiteat want and eitremitj that macted
moat of tbeirttibieccs, and niotC unrominBte in
ibecboice of their minitten, and to have foiled
moa in [heir andenakings ; happy i» ihtt
pnwTtbat haib those that are foitlifiil ofhii
CModL That nhich hii majesty wanted in
die manifcmeiit of his afiairs concerning
Fmieeand &»in, I am clear, was his want of
hitUal cosncil to adiue : the reMOD is plain,
a uioce ii ttrongeit by faithtiil and iviBc coun-
cii J I would I could tnil]^ »y, such have been
tmplo^ abrtMid. I will canfeu, aod Kill
Aali Ironi mjr heart, he is no |ood sul^ect, nor
well aSected to his tnajest; and the state', that
wiU not wiliio^j and frcdj laj don-n his life,
wken Che end may he the service of his majesty,
and (he good of the common-weal. But on
the contrary, when agajnit a parliament-law,
■be Subject ahall have .taken from him his
mdi against his will, and his Liberty gainst
Ue hwB of tbo land ; shall it be accounted
*ut of dn^ in 0* to stand upon our privileges,
bcicditary to ns, and conficnied by so many
act) of parliament P — In doing this we shall but
(read, ttw steps of our foi«fatheis, vho ever
yefened the public incernt before their own
B^ nay, before their own Uvea ; uur can it
be any wrodg to his majesty to stand upon
ikem, so a* ibocby we may be the better ena-
U«d to du his mqesty service. But it will be
« wrang lo ua and our potlerity, and our con-
•cwBoet, if we willinjily for^o that which he-
kojp unu HI by the taw of Ood, and of the
' iud, and this wa shall do well to ptesent to
iaiMJNty; We have no cause tO doubt of bis
Mfotr'a grodon^ acceptatic»).
Sir Tliomat Wentwortk.
TMs debate carries a double aspect towards
tbesotercign aod tlie subject; though both be
in«Keol,luth are injured and both to be cured.
Boelj, intbegieatesChiHoiliCylspeak it, these
■Uegal ways are pDui&lunent and marks of indig'
Hbon, -l^t rauing of Loam strengthened by
crnininion, with unheard-of instruction* and
eatbs; the billeting of soldiers by the tieule-
msu, aad deputy-lieu teoants, have been as i1
ibry could have pcDoaded christian princrs,
je» worlds, that the ri^tht of empires had been
to take away by strong hands, and ^y have
adMionred, as hr as possible for them, to do
it. Tfaisbathnot becndoneby theking(under
tlv nl easing sbnde of whose crown I hope we
riwlt ewr gather the fruits oFjutticeJr h"' by
pn^Ktors, who harecitcnded the prerogative
of the kinE beyond the just symmetry, whicli
Dakctk theiweet banuony of the whole: they
lave brou^t the crown into greater want tlian
~'er, by anticipating the
ingratiating ourselves with liim, taking up
itie root of all properly, nhicb if it be not sea-
sonably set a^aiu into the ground by his ma-
jesty's own hands, we shuU have, instead of
beauty, baldness. To the making of those
whole, I shall apply myself, and propound a
remedy to all these diseases. By one and the
same thing have king and people been hurt,
and by the same musX t)iey be cured ; to vindi-
cate, what, new thin^ ? No, our ancient vital
liberties, by re-inforcmg the ancirnC laws made
by our ancestors, by setting forth such a cha-
racter of them, as no licentious spirit shnll dare
to enter upon ihem. And shall we chink this
is a way to break a parliament? No, our de-
sires are modest and just, I tpfak truly, hath
for the interest of the king and people ; if we
enjoy not these, it will he impossible for us to
relieve him. — TTiererore let us never fear they
shall not be accepted by his goodness; where-
fore I shall shortly descend to my motions, .
consisting of four parts ; two of which have re-
lation to our persons, two to the propriety of
goods. For our Persons : first, the freedom of
them from impHsonmuit: secondly, from em-
ployment abroad, contrary lo the ancient cus-
toms. For our goods, that no Levies be made^
but by pBrtiameut; secondly, no billetting of
Soldiers. It is most necessary that these be
resolved, that the subject may be secured in.
both.
Sir Benjamin Rudyard.
This is the crisis of parliuments ; we shall
know by this if parlinnionts liee or die, the
king will be valud by the success of ui, the
counsels of this house will have operations in
_ii :.:_ I. __■._.■__. 1 -. ir,jp5(y begins to ■
tWhe willrelj
rvntion is natu-
ral, we are not now on the bent ette, bttt on tbo
me ; be sure Ensland is ours, and then pruna
it. Is it tio smiill matter that ne hnve pro-
voked two most potent kings? We have united
them, and have betrayed ourselves more tlian
our enemies could. Men and brethren, what
shdl we do ? I* there no balm in Gilead ? If
the king draw one way, and the parliament
another, we must all sIdL. I respect no par-
ticular, I am not to wise to contemn what it
determined by the. major part; one day tells
■nnther, and one patliaiaent initruccs vtother.
I desire this house to avoid all contestanons,
the hearty of kings are great, it is comely that
kings have the better ol their subjects. G^e
the krrg leave to come off; I believe his ma-
jesty enpecLs but the occasion. It is InwAil,
and nur duty to advise hit migesty, hut tbe
way is Co take a right course to aCtain the right
end ; which I think may he tlius : by trusting
, , ,. — „ — . , — — I the king, and to breed a trust in him; by giving
•ba shepherd be thus sniitten, sad the sheep ■. him a large supply according to his wants, by
Mt teutered 1 They hare introduced a Privy- | prostrating om ^nevances humbly at hi* fe«t,
■m] ffTATB'raiALS, iCoAWul: 19XJ -i^—'Proeeediagt 61 IWbmmrO^ to fH
AxiJc of iMflding wlut M mute ? iriU ^m Mt
fern dtence they viH bave the ben w^ to faji
Wwt, thM n done in dui; to hia m^eaj. And
I* *ay nil at snre, l«t m all laboiir to set the
kin*! oil oiv uda, nnd t'lis maj be no hard
tnaiter, cotiiideHn^ ilie near subiuleDca be-
tween the lung and people.
Sir Edward Cokt.
' DuRi lempus liabemiis, bniium opere
I am nbantately for e'^''"8 " ^"PP'y *'
mnjesty ; yet with some cnuljoii. To tell
you of Itireign dnngprs and Inbred evHs, I
will not do it; the Slnte is inclining to a
' sUTDplion, yet nnt incurable : 1 fear not Tureign
enemies, Go<( seutt 119 peace Rt Imme : for this
dii'eaie 1 will prupoond rcmcdieB, J will
(eek nothing out of mine own head, but frum
mj heart, and out of aeis of parhtuneoC. I an
not able to 6y at all Grievances, but only a
Zoant. IiFt U) hut Butter ounelves; who will
give Subsidies, if the kine may impose nhat he
will? and if, after parliament, the king' n:
iohance what he pleascth^ I knoA ihe ki ^
nUK not do it, I know lie is a religious kin);,
free from perwnaJ vices; but he deals "ith
other men's hands, uid sees ntth other men's
Cj'es. Will any give a Subsidy tliat will be
taxed aRer piirfiHmeni at pteasore ? The king
cannot ta« oiiy bj way of Loans ; 1 differ from
them, who would have this of Loans go amongst
- Grievances, but I wOkitJ ha»e it go alone, — I
vitl begin n-ith a nobl« Record, it chears me to
(hink'Of it, 3S E. 3 ; it' is worthy to be written
in letters of gold ; Loantagatnit tkewilli^'the
Suljtct, art agaiiut Rcaton, aad tie Fraiichiiti
i^the land, and they desire rettituliiin : what
a wont is that Frmc/iut ^ Tlie lord may tax
hi* villein hiyh or low, but it is against the
ftanehise* of the land, for freemen to be taxed
tlut bv their consent in parlinmenl, Fratichiie
a a French word, and m Lntiii it is Liierfni.
In Maj-na Charta il is provided that, ' Nullus
* liber humo capialur vel imprisoiieiur aut dii-
< seisictur de libero tenelnento, sua, Sic. nisi
' per legale judicium pariuio suorum vel per
' U^em terra ;' wliich Charter hath been con-
firmed by good kings above thirtj times.
Wtwn tbc*e genthinea had spoken, sir John
C«k,S«ci«E«ry of St»te, took up the matter
tbr the king, I and concluded for redreu of Griev
anoot, so that Supplies take the precedency ;
aadaidi
Mr. SemlatxC^ok.
I had nitJwr ytNi woold Iimr any thao me ;
I -nil! ilot mnfwer what hath been alr^y
qrabea; my intent ifOM to Kif, bat to quiet;
Hot 10 provoke, bnt to Ap.peaae : ngy dnire is,
tliit evci^ one resort to his own heart to re-
■anite t)t« king and his state, snd to «ake away
tlte scandal ^m us;-eT«iy one speaks Jromihe
abundance of Mf heart; I do'cani^ude out of
««ery one's ct>ndiuion, to give to the king, in
Kdren-grieMuiccs; dt' the dli^rence i^ about
the manner. We alt are iahnbiMlits-in one
house, the Commoti'waaltli, let every one in ^
'Winewhnt amend hi<tiouse>;kami;irhat is. -imlss:
>ntif oiidM bMiselw on £ib,«11I we then
rather qoench tl>e tiref the ikngerall Mfn
bend. The way Uiat iipropouadtd, IiaekiK
to deohne. Ilk^Icourws hiMe baen tskea, it
must be confessed, tlie redress mMt be by ban
and punishment : but withal, aitd the law ef
neoewity ; neoesaity hath no hew, you amat
abditate the state t* ris, what yoa do by fiea-
tioB require. Itis wished ne begin withGiier-
ancte; I deny not that we^ropare then, bat
shall we offi>r them 6nt I Wdl not tUt aaen a
cottdilion with Us majesty i Do we not dail
with a wise king, jealoua of hi* httnoar f AH
subiidics cannot ndTaatage his majosty lo
much, as that hii sittMects do «pmt to sop^y
him; this will amaie the eneiBT botc than ten
Subsiilies : begin therefare with the king, and
not wilt ourselves.
Sir Roba-t PkUlipt.
This day's debate makes me call to mind the
nustoni of the Rnmans who had a Mlealii feast
onoe a year for their slaves, at vAiioh time ttey
had liberty, without eiceptidn, pi sjMafc what
Ihsy would, wheKby to ease thnr efflioNd
minds ; which being Miished, tk^ aereraUy re-
turaed to their former servitutle. Thi* mafi,
with some reseaiUaDCe aad diniaetian, wtlt
set forth our pMsent state; whcm now, after
the revolution of some time, afid grievtins lof-
ferings of maay violent oppreasiaBi,'We haw,
as'tfaose daves had, a day of liberty of tpMeh ;
but shall not, I trust, be hnvin slaves, fhr we
nre' free, «e are not bondmen, but sebjects :
these, after their feasts, wera alaves again ; but
it is our hope tu return li*emeo. I am glad to
see this morning's work, to see sutJi a sense
of the Griatfances under which we groan. I
seeaconcorrenoeof grief from all parts, to see
the Sul^ect vrrongad, and a fit Way to sea the
Sukject righted'; I eipected to see ft division,
but I sea an honourable conjunotion, and I
take it a good omen. It was wished by one,
ihat there were a fareetfulnes» of all ; let him
not profper that wishetb it not. No, there is
no such ways to perfect remedy, aa Vb forget
injuries ; but not 90 to for^, as not to recover
them. It was usual in Ban>e to bniy all inja-
rieson purjKxe to recover diem. It was said
by a gentleman, that ever speaks frteiy, ' We
' must so govern ourselves, aS if this partiameiu
■ nrast be the crisis of allpartiatnents, and this
' is the last,' I hope well, and there will be
no cause for the kin^, oar head, to e«ce|>t
asnimt ns, or we against him. The dni^crs
abroadan>preaentedU)us;heisnoBiigiiihmkn
that is not apprehensive of them.
We have pfovolccd two potent kings (the one
too near, wtio are too Hroogly joined toeethar ;
t'cfaimeriral, butretJ, I nc-
mun be done in proportien
lt( our dangers at home : I more fear tb^ vio-
latioo'of public Rights at home, than a tnreigii
enemy. A&st ir he our duties and direction to
defend fsreign itnngers, and establish security
against tbem, and shall we not' leok at-tlmt
which aMI ttMke M abkasd wiiUag U
the dangers n
651
STATE TftlALS. S Craklu I. IGT^-i.—Oe UberiytflheSidifKi. [6G
that Nflcesihjr is on aroied mui, and ihai Ne-
caaitj a an ctiI Counwdkir, I would wa ImiiI
tai WethaU nnt omit to coofide and trust
iu au^mlj, otbcrwiie our c>nii>ieli vrill ba with
fean, and [iiai becomes not Englitlmtca. The
auacctutoned vinteiKei. I bare QotLiiig but a
ggod meaoiDK, trencb into ail nt hate. To
(he four Faniculars already mcDtioned, i{>here-
ia «( suSirr, ooe more may be added, last Cod
fcctieat 10 Itear me in the day of mj iruubla ;
sur Keligion ia made vendible by Cumnlissioii* :
»)ttl DOW a toleration is iranted (litile iau),
■nd men lot oecDniary annual rates di4]>eiiscd
■itiiid, wbereliy Papiiu, without fear of law,
practiK idoJaCi-j, and scoff at parliamtnu, at
IiM, Slid all. It is nell knuwD, the people of
diii itatE are under no oLber sabjeotion, than
■hit they did voluntarily consent unto, by the
oii|i[ial contract between kiai; and people ;
aad ai ibere are many prerogaLivei and priii-
kges cooferred on liw kiog, eo Ibera are left to
lot Sobject many necessary liberties and Pri-
Tiirgai, M appears by tbe comnon laws and
act! of parliaiiieDI, nolwithstAnding what tjiese
twi) Sycophants, Sibthorp and Man waring,
bare praUd in the pulpit to tbe contrary. Was
there ever yet king of England that directly
Tiolued the Subjects Liberty and Property, but
ihnr actiosa were ever complained of in par-
liunent, and do sooner complained of than re-.
ikeisedP VI £, 3, there went out a Commis-
4 raise nancy in a strange manner; the
fitroe of that was, kwk into the atatut* of K. 0,
•ikich daianed that p&iticillar way, and all other
iadirea ways.
Since the Kj^bt of the Subject is thus bul-
warked by the law of^e kingdom, and princes
upon complaint bfie redresKd them, I uni
cnnlideBt ire shall have the li^ cause of joy
faim bit majeaty.
I will here make a little digression : tbe
oanlf , ^meiieishire, I Hne for, were jileastd
to coinniand me lo seek the removal from
Ihem ol the greatest burthen ihat ever people
laSered. It won excellently siiid, C^immTs-
maaiy Lieutenants do deprive us of nil liber-
ty ; if ever tlte like was wen 'of tbe tieuteniulcy
iWl DOW is, I will neverbe beheved mure:
they tell the people ~tlicy must pay so much
BpoD wanvQt from a Deputy- Li en tenant. Or be
bound to tne pMd behaviour, and sent up tn
iheLordi of. the Council; it is the stranee^t
«a|ine to rend the libcriv of the lut^ect thAl
eierwas: there is now a Decemviri in every
manqp, and omongii that Decemviri, there is
SMae Clnudius Appiui tluil se«k their own re-
veuies. We mifiplxiti of Loans and Impoii-
tioM, bat when Oepuiv -Lieutenants may hcnil
Warrants to imprison oar |)er«ons at pleasure;
Jtwe pay not nh.il they ^ent tor, it concerns ut
to p;eierve tbe country in freedom, and to con-
nkr of (tua kind of people.^ There is now Ne-
CMity brought in for an argUDMUtj all know
TOU III.
never known that counsel; we ere almost
grown like the Turks, who send their Janiza-
ries, who place the hstbert at the door, and
there he is master of the house. We I'pve S^
diers billetted, and Warrants to collect money,
which if they do not, the soldiers muvt cuma
and rifle. The Romans sending one into Spain,
found DO greater complaint, than the di^icoD-
(ent that diJ arise, from soldiers placed aDiongtt
them. I would you would look into Tortescoe,
where be puts tbe prince in mind, what misenr
be saw, wDere soldier* were put upon the peo'
pie : Imt, siuth he, no man is forced to take
Soldiers but lun^, and they are to be paid by
(hem. 1 desire we resort to bis'mnjesty for
redress, and to rtduce all into bound).
The oilier way of Grievance is a Judgmmt
in a legal course of proceeding; we have had
three Judgraents of late tinies, all eiceedirfg
one another in prejudice of the subject: tha
first wat, that which was judged in all tbrtnalitj,
the Postnati, Scots, caae, " which people I
honour; for we find many of them lore us more
than we do ourselves ; 1 do not com[^)n of it.
Tire other Judgment was for Impositions, t
which was given in the Exchequer, and this
house twice afterwards datnned tliU Judgment:
how remiss our eyes ate upon that 1 grievo
There is a Judgment, if I may so call it, a
fatal Judgment aguinst the Liberty of the Sub-
ject, Mich. 3 Cur. in sir Jnbn Heveoinehauf'i
Case, Bi^ued at the bar, and pronounced but by
otie alone. I can live«ltbough another witbbut
title be pat to live »il1i lae ; nay, I can live,
altbouah I pny I'.ncises and Impi'sition^ for
more than I dr ; but to hat'e my Liberty, which
is the jiou] of my lire, tukeu from me by pi» ~ ~
gnoi; O improvident nnce.»iorsT Oui
fathers I to be so curious ia providing tb^ the
quiet possession of our Innds snd liberties of
pnrliament, and to neglect our penons and
bodies, and to let them die in pnsi>n, and that
dttrUTii* bene ptaeita, remediless. If this b«
law, what da we tnik of our Liberties? Why
do we troulile ourselves with tbe dispute of
Law, Fraiicliisea, Propriety of Gnods? It la the
tamma iotal'a of all miaenrs ; i will not say it
was erroneous, but I hope «o shall speak our
minds, when that Judgment comes here to be
debated. What may a man call thii ? if not
liberty. Having paiUed in some confusion in
the tiishion of my delivery, I conclude : we will
cun'ider two purticulars, his Majesty, end bis
People. His Mujeaiy culls to us, mid crsnes onr
assistance to revive again his honour, and the
hunnuroflhe naliun: the People send us, as
tie tope, with that directii'o, tlut we shall re-
turn to them with that olive bninch, tli.it nssu-
rauce of being freefitnn tliose palumitlrs, niider
' See ■vol. Ji, p. 559. t I*'''*- P- *' I-
C7] ^ATE TBIALS, SCajM^ I. iQ28.^Proeeediags in Pariiaiaeianlatiiig la [66
wtuch ihey ciq hardly breathe. Qui sins ba*e
brought on lu those aiiseriei, ki U9 all bring
bur portion to muLe up ilie wall: we come
with loyal beaitt; liii inajtsty al>->ll &nd, thai
it is we tliat are his liiiihlul cnuiiscllors ; Jet nil
(yofhauis he fur renioied from liia majesty,
since wp cannoi helgihis majesty Hithoui open-
ii^t our Grieviinct'S: IpI dh diii'hariie onr duties
■Ili^reiD : yt while we seek Uberiy, we will not
forget subjection. Al\ tilings a *ta!e can be
capable of, either blessings or punishments,
depend OD this nieeting: if any ibink ibe kinK
may be supplied, and ttie camnionneiiltli pre-
served without redrea of (>rieTant»a, he is de-
ceived, 'liie kinKS of Edflaiid were nerer
mure glorioas tliaii when ibey trusted their
Bubjecls : let us nhke ill haste to do ijie errand
for which weAime; let the bouse cousi'ler to
prepare our Grievances lit fur bis mujesty's
view, not to make a law to give us new hbet-
ties, but declaratory, witli respective penalties ;
so that those which violate them, if (bey nould
be vile, they should fear Infamy wiib mpn; and
iJien we shall ihiuk of s.uch a Supply hs never
priace received, and with our money we shall
give him our lieorir, and give him a new people
raUed froio the deud : then I hope this parlia-
ment will be entitled, ' The Purliiuuenl uf
* Wondera,' and God'a Judgments diverted, and
these hpanis of Koodness shall give at life, and
we bbol^ g" luHne to our o»u couLitries, and
leave our posterities as free us
left us.
Monday, 34 March. Secretary Conk re-
newed the motion of Supplies fi>r bis oiBJesly,
yet 50, that Grievanoe!, be likewise taken into
consideratioo. Then lie mude a meiiuu,
" That the same Committee taaj bear Pro|>i»i-
tions of general headi of Supply, and after-
wards e*) lo otlicr busiiiesie^ of the day for
Grievances." Others preferred the considera-
tipn of Grievances, ns a particular mot that
invaded ttie main Liberty of ihe Sulyect. It is
the law (said they), that glorious lundnmental
llighC, whereby we have power tnt;ivei we
desire but that his majesty may see us hnve that
right therein, which, next to God, we iiU desirej
Biid then we doubt nut, but we shut! ^ive bis
majeily nil supply we can. The time was,
when it WHS usual to desire favours fur sowing
of discords, aii Gonilomar did for Raleigh's
head. But the debates of (his day came to jio
Bi' solution.
The day rnl!owina,heing the 25th, Mr. Secre-
tary Cook tendered the Iwuse certain Pmpo^i-
tious from the king, touching Supply ; and told
tliani, That his majesty, finding time precious,
expects that (hey should bcuii speedily, leit
they spend that time in dehberaiiou, which
■huuld be spent in action : that he esieenis the
not on pri cedents in point of honour. There-
fore, ta satisfy his luajeMv, let the same Lum-
nittee take.bis majesty's f roposiciuneinio cod-
liderolion, and let both concur, whether to sit '
on one in ibe foreoocin, or ihe other iti tbe
alteruoon, it b all one to his majesty. — Here-
upon the liouse turned themselves into aComr
ittee, and coounanded £klward Liuletun, esq.
itu tike chair, and ordered the Committee to
take into consideration the Liberty of the Sub-
ject, in hisPenon, B>.d inhisGoodti and also to
take into conwderation his majesty's .Supply.
In this Debate the Grievances were reduced to
pii beads, as to our Penolts.
1. Attendance at the Cuuncil-boM^. S.
Imprisonment. 3. Confinement. 4. Desig-
nation for foreign Employment. 5- Martial
Law. 6. Undue Proceetlings in matter M' J a-
dicatnre.
The first matter debated, was the Subject's
Liberty in his Person: the particular instance
was in the case of sit JobaJleveningham, and
those other gentlemen who were imprisoned
about Loon-money, and thereupon had brounht
their Habeas Corpus, had their Case argued,
and were nevertlieles remanded to prison, and
a Judgment, as it was then said, wai entered.
Then .Sir Edmard Coke spoke as follows,
Itistme, that the king's Prerogative is apart
or the law oftliii kingdom, and a supreme part,
for the prerogative is highly tendered andres-
pected of the law ; yet it hath bounds set unto
it by tlie laws of England. Out some worth^T
metnbers of this house have spoken of foreigu
states, which I -conceive to be a fbreien speech,
and not able to weaken the side I shall maia-
That Mr. Attorney (sir Robert Healh) ai»j
hare soniething to answer uuto, I will speak,
»itbout taking another day, to tbc body of
the cause, yet keeping something in store for
another time. I have nut my Vade eiectim here,
yet I will endeavour to recite my aucliuritiea
truly 1 I shall begin with an old authority, far
' Errorem ad sua principia refarre, e^t ref(J-
The ground of iMa error was the Sutute of
West. 1, cap. 15, which saitli, ' That those are
' not repleviuble, who are couimiitud tin' tlie
' death of a man, ur by the commandment
' of the king, or his justices, or fnr the forest',
(for so it wns cited:} and Stamford 72, ei-
pouoded hereof, the ' cuniraaudment oj' tbc
' kin^' to he the commandmcut of the king's
mouth, or of his council : but it is clear that by
prtrepiam is understood the commandment of
the Justices of the Kiivg's bench, and. Coiumiut-
Fleos: and lliis is ' cmitempotanea expoiiitio,
' qus est lortissim.i in lege.'
To tliis purpose vide Wcstm. 1. cap. 9, the
Book of sh. Q. item, cap. !Si,dtmale/actoribu»
in pair, the Book oft) H. 4, 5, item, 35, 36, S9,
c. ijuidem ttaltili, whereby it may appear
(hat the commandment here spoken ot lo
be the conimaiidmeut uf the king, is his com-
mamfment by the Judges, ' PrKceptum Do-
' mini Hegis in Curia, non-in Camera.' So
it is likewise token 1 R. S, ct^. IS, in a Statute
made ia tha ueit king's rei^, and exptesdji ia
«91
STATE TRIAI^, 3 Chables I. 16S8.~'~iie Libaiy qftHe Subject.
Dm, hi 1G2. i 50. M fbl. 194. ^. S4. Shdl
I nither proTC it b; QMtter of Record ? ' Fac
• hoc et ines :' it is 18 E. 3, Rot, 33 cotBin
Kegt, John BilMoD'i Cass : who being cammit-
Eed sad detained in prisoa by the coniTniuid-
~ ' of tlie king, wni discharged bj Habeas
■ eu quod breve doDtici regis uon Tuit
.'wilhf.ieina
AUtbe
liooaredirecttollie point, Bnd oJsothe 16H.6,
Brooke and Uttletiiii, 9, 6, laoDstniis de I'ait
18S, per Cur. The king canuut command «
man lo be Hrrested in his presence : tbe king
aa arrest no man, because there it no remedy
ipiiuihiiD, I H. 7,4, like\fiBe^r«rficl. ilat.
c IS, the kin^'* pleasure is not binding without
tkaaNeotol' the realm,
I never read an; opinion against what. I have
aid, but that of Stamford, mistaken (ns you
KC) in tbe ground : yet I Say not ihat a man
aij not be committed witliout precise shewing
(because in partienlar; for it is suiHcieot if tbe
OHM in eeneral be shewed, as Tor Treason, &c.
1 E. i, list. dijTMn genJ. pruon. nutlut habtat
jtJuiitM, &c. there tbe cause of imprisoDment
nut be known, else [be statute will be of little
foite; tbe words thenofdu plainly dentoDstrale
ilieiot«ntofthestatutelobeacoordiBf;ly. Iwill
toadude with.tbe hiebest authority, tbnt is, 35-
tbtp. of the Act* of the Apostles, the last verse,
when Sl Paul saitb, ' It is against reason to send
' a man to prison witliout shewing » cause.' —
Tiat, Jdr. Atiomej, according to the rules of
phfuc, 1 bare given jou a preparatiTe, which
■loth precode a purge. 1 have, much mom in
Mr. Creumtll.
I Etand up to speak somewhat coDcerniog the
fmn of tbe lohject* grievances by impnsoo-
tmt of their persons without an;r declaration
«f the caose, contrary unto, and in derogation
o(>be fandamental laws and Lberties lif this
* " I rise not to make an oignment in this
IKiist, the greateat thai aver was in this place,
Kcliewhere. This liberty, which all men, us
•rll lawyers as others, believe, as I hope, hath
been ciolated, though not without complaiiit :
bit eiccpt ill this late course, I am confident,
VIS never adjudged before. The Habeas Corpus
■M brought, the cause irat returned by com-
lund of uie king, intimated by the lords of the
eoaocii; Argomeot was mode; seven acts of
pwhsment wero menriaDed,and all were passed
oier, and only commended ; and upon that a
peclaration of Judgment was giveu,*nd to ad-
judged; * That upon any commitment by the
' king or the council, no enlargement can be.'
I ever observed, in any great cause, solemn or-
•nments used ta be made. We see his majesty
ud his conocil are hath interested in ibis. I
'a desire that some of the king's counsel may
■peak what theycan to satisfy us of this great
powsr." MSS. Pymmii apud viruni honoratum
Tbomatn Hales baroneltum. See Seldco's Life
in bij Works, vol. I, p. 13.
[TO
kingdom. I think I am one oC tbe Puisnes of
our profession, which are of the members uf
this house ; but howsoever sure T am in tliat
respect of my owtl iiiabilities, 1 am the Puisn»
of all the whale house ; thoelbre, according to
(be usual cuurse of iiudi^nts in oui profession, I
(as tbe Puisne) speak first in time, because I
can speak lea^t in matter.
In pursuance of which course I shall rather
tut the case than argue it: and therefore I shall
umbl^ desire hrst of all, of this biiiiourabla
huu4« in general, tliat tbe goodness of the causa
may receive no prejudice by the wealneu of
my argument; and next of all, of my master!
bet« of the same profe^iiun in particular, that
they bv their learned judi^ments will supply tlie
great defects I shall discover by dacloring of mj
unlearned opinion..
Btfore,! speak ofthe question, pve me leave,
as an eoirance thereunto, to speak brst of the
occasiuu. You ■bHll know, Jostice is the life
and the heart's blo'KJ of tlie commonwealth;
and if the commonweaUh bleeil in the master-
vein, all thcbalm in Uilead is but in vain to pra-
scrve this our body of pubty from ruin and de-
structiiin. Justice is botli ' coluimiaet corona
' reipublicB,' she is both th« column and tite
pillar, the crown and the glory of the common-
wealth. This ii made guud in Scripture by the
judgment of Solomon, ihe wisest king that eter
reigued on earth. Fur 1, she It tbe pillar ; for
he ssith, that bv Justice the throne shall be es-
tablished ; S, she is tbe crown ; for he saitb,
that by Justice a nation ii exalted .-~^Utir lawa,
which are the rules of this Justit^e, they Hre the
ne plia uUra to hoiti the king and tiie subject ;
and as ibcy are the Hercules' pillar, sii are thej
ttie pillar to every-Hercules, to every prinee,
which be must not pass. Give lift leave to re-
semble ber to Nebuchadnezzar's tree : fur she
is so great, that she doth shade nut only the
pniace of the king, and the house of (be nobles,
but doih also ihelter the cottage of tbe poorest
Wl>erefore, if either now tlie blasts of indig-
nation, or tha unresistable violator of laws, ne-
cessity, hath su bruised any of the branches of
thia tree, that either our persons, or goods, or
posiessiuns have not the same slielter as before;
yet let us nut therefore neglect the mot of (hi*
great tree, but rather with all our possible en-
deavonr niid unfeigned duty, both apply fresh
and fertile mould unto it, and also water it even'
with our own tearf, (bat so these bruised
branches may he recovered, and tbe whole tree
again prosper and fluurisli. For this I have
learned from an ancient Father of the Church,
that ihouph ' preces reguni sunt annats ,' yet
' urma sobdituruin ' are but only ■ preces et la-
Iknow well that ' corregisinscnitabile;' and
that kings. althtiutLb thej are but men befiire
God, yet are they Gods before men. And there-
fore to my gracious and dread sovereign, (whoie
virtues ore true qujlitiet ingcneratc both in his
judgment and nature) let my arm be cut off,
nay, let my soul not Ure that day, that I shall
71] STATE TRIALS, 3 ChaklmI. lfieB.—J^«c(witB«i » P«rl««««i rearing to [19
iterwKHf accept aTcmed;; for tbc law ht^a
B dumngen »unici«Dt recompeuc
dare to lift up mj ann to touch that forbidden
tniic, (bose Mowen uf his princel; crown mid
But /et in our Eden, in thia j^rden of (be
cvminomvEnlth, as there are the Jimeert aj thr
lUK, nhich are so glurious Ctiat they are t'> be
bandied only by tojmI majcaiy ; so b«; tliere
b1»> siinie daisies and Kbulesoiiie herbs, wliicii
ttcrj ciuiuDon b&nd tliat lii-es and labours in
this Kt")eD may pick and gather up, and take
comfort and repose in ihsm. AmoiiEit all
which tbis ocuJu diet, this bona Ubertai it one,
tttd the chief one.
Tiius moch in all humbleneM I prcranw to
rik for the occasion. I will now descend lo
qnestion ; wherein 1 hold, (wilh all dutiful
aubmtsaiou la better judgments) ihnt iheee acts
of puvteriti impritKitiiiig and coiltining of his ma-
jetty's subjects ill such mfinner, withtnit any de-
chiruti')n of the cause, are against the funda-
mental laws and liberties of this kingdom.
And tbr these ceawns thus briefly drawn, I
C«ndud«,
1. 1 bt first, from the great farour which tlie-
law doth gii« <.n[(i, ni>d the great care which it
halh ever taken of the libtrt* and sat'etv of ihig
kiugdom. I should not nicd to take Che qnrs-
I (ion in pieces, nor handle il in paits dividedlv,
hut irone entire ; because I Uild nu other dif-
ference between Imprijonment and Coiilinr-
meiit than ontj'tliis, that one hath a less and
■traiter, the other a greater and larger prison.
And this word Cuufiiienieiit not being to be
ftonrt in anv_ ooe case of our law, if therefore it
Is becunie the language ufstiile, it i* too difficult
o define
To proceed therefore in maintenance of ray
fir« reason ; i find our law dotli so much favour
the Subject'!' LJberiy of hia pervin, that the
body of ainan was not lifthle to be arrested or
Imprisoned for any other cause at the common-
law, but for force, and things.done against the
r of the land) so abborreth
those that commit it she accounts her capital
memies, and i here Fore il id subject their bodies
to imprisonment. But by the statute of Marie-
bridge, Cap. 94, which was made 35 H. 3, who
was the eighth king from the Conquest, because
bailiffs would not render accomits to their lords,
It w»s enacTed, that their bodies should be nt-
. tachcd : And afterwards by the Statute 33 Ed.
8, IT. who was the eleventh king arier the Con-
Esi, because men made no conscience to pay
tr debts; it was eoacteil, that their bodies
ihould likeniie be aitachcd : But befoK those
•Utntes no man'5 body was subject to be taken
nr imprisoned otherwise than as aforesaid.
Whereby it is e.ident, how much the comrann-
luw fuvoi'red the Liberty of the Subject, anil
protected his body from imprisonment.
1 win in o re tiie reason further by a rule in
hw, and t<inie cases in law upon that rule.
lliernlpistliisThat ' Corporal is in lurin non re*
' ci[jite9limaiionem fefuturo;' Soasiftheijucfr-
tion be not for a wrong done to t^ie person, the
taw will not compel Um lo sustain it, and
..'hich is corporal.
The CBSM in law to prove this, shall be these.
If one menace roe in my goods, or that he will
burn the erideoce of my l-md which be hath m
his custody, ualew 1 make unto him' a bond :
there I cannot avoid the bond, by pleading at
thiainenace. But if he restraiiii my pcrvm, or
threatens me with batlety, or with burning mf
house, which is a protectioa for my pciaon, oc
with burning an initrum«it of manumibMon,
which is an evidence of my cnfranchiseiiieDl ;
upon these menacM or dares, I shall avaid tba
bond by plea.
So if a trespasBM drives my beast ov«r an-
other man's ground, and I punue to reacue it}
there I am a trespasser to him od w hose growd
I am. But if a man assault my person, and I
for mj safely fly over into another man's
ground, there I am no trespasser to him, fiir,
> QauA quis in tuitione sui corporis feccrit,
' jtire id fecisse exist imatar.*-
Nay, wbich is more, the Common-law did
ftivoDr the Liberty not only of Freemen, bnt
even of the persons of bondmen, and villeint,
.who hftv no ppnpriety either in lands or goods,
HS fn>emen have ; and therefore by the law, the
lonl could not ra»im his villein; nay, if the
lord coranwnded anotlier to beat his villdn,
ahd he did it, the vitleio should have his action
of battery agMnst hiui for it. — If the lord matle
a lease for years to his villein, if he did plead
with Ns villein, if he tendered his villein to be
champion for him in a writ of ritht; anyof
those acts, and manv other, which I omit, were
in law enfrauchiseiuents, aad made ihesa »il-
leiM freemen. Nay, in a suit brought against
one, if he by attorney will plead that he ia »
villein, the law is so cafvflil of tteedom, that it
disallows this plea by attorney, but be must do
itpmflriopeFTiMW, because it binds his posteritr
and blood lo the viUein's also. And thus much
in the general for my first retaon.
a. My next reason is drawn by an omiment
i mafan ad minui ! I frame it thus : Iftbekii^
have no absolute power over our lands or
poods, then H J'M-tityri not orer our persons, to
imprison them withutit declaring the cause, fijr
our persons are much 'more worth than either
lands, or goods ; -which is proved by what I.
have said already, and Christ himself makes it
clear, irtiere he saith, ' An non est corpus supra
■ vestimentnm f Is not the body of more noith
than the rahnent? Where the Canonists say,
that vatimtntiim coroprehendeth all outward
ihingt which are not in the same degree with
that which is corporal. And our law maketb
it nISD plain; for if a villein purchaseth frank-
land, this makes it villein-land according to tba
nature of his person ; but it holds not i cin»>
vena, frank-land shall not free the person.
Now that the king hath no absolute pow«r
either over our lands or goods, I "ill only at
this time but put a case or two : for without
pmoF of the premises, my ebnchision wmttd
nj
ffTATE TMALS, S Chaklu L 1038 — Ike IMgrlg qfite BJgttt.
["
Fint forXand : The km; c«Rnot by fait let-
Ultptcut sake the w>q nl' mi tJi«i heir 16 hii
&tlier, nor ca taj otber, Ibr be ca¬ diiin-
heiuttie ri{hi heir, saiLh the book, nor ilo do
pr^iiJ>ce lo the lord of liii eseleai. 1 he king
bj liis prerugutve shall (jay no toll for Cliiujjs
loi^bt in Riirs and mHrk«i»; Ijut acuttomfor
pajiog toll to ce over tlie wil aAd freeholds of
imaOitt (hall bM (he kto^, for thn toudietli
lt« iahnitancc of the Mbj«ct; and therefare
th* king ihall not h«Te to moch a< a oay over
lu laadi wiibout psviw; and if not a w«;,
tkeneertMnty not the land ittelf.
Neil fin goods ; If a man baih a jewel in
pgefbr tCD pouad, &c. and is allainled for trea-
H«, d»e king rimll not have this jewel, if he peji
bM dw ten pound. So if cattle be distreined,
adtheowner ofthm dfierwardt be itisinted,
}«t the kinf shall not hare ibein until he luve
■tided th&t for which the; were distr«ine<l.
ind if in these cases, where the ownen of the
|mkIs kre mch capital offenders, the king can-
sot bare them ; much less shall be hare them
wkeo the owner is inDoeeni, and no offender.
Nay, I maj well nj that alinoit every lenf
Md page of hU the valnmes of our Common-
I*w prove this ri»bt of propriety, this distific-
lioaorinaiM and tuunr, as well between kine
sod (ubject, «s one subject and anotliei;: ind
Iberdure my conclusion follows. That if the
peregatJTe extend not neither to lands nor to
fDods, then i fortiori not 10 the penoo, which
11 more worth than either lands or goods, as I
nid. And jret I agree, that hj the very law of
aiTure, service of the petson of the subject is
ihe to his soTereign ; but this must be in such
Ihingt which art not a^nst the law of nntutv :
but to have the body imprisoned without any
ttDse declared, and so to become in bondagp, I
■m lare is contraiy unto, and against A* law
rf BMare, and therefore not to be infbrced by
the soTETci^n npon his snhjects.
3. My Dest reasua is drawn eb inutili et in-
CMOMtto. Forihe Statute dejranstntibnt pri-
Mtam, made J E. 3. i*, ' quod nuUus rjui pri-
' Mnam fregenc, subeac judicium viisc vel mem-
' broniiB pro fraclione pmonn tantum, nisi
' causa pro qua capiu« iinpriranetur tale judi-
'ciom i^nirnt.* Whence this conclusion is
dtarjy gathered, Thnt if a man be cominitted
■0 prison wiUioat declaring what cause, and
then if either malefactor tfo break tiie prison,
•r the gaoler solfer him to escape, iJbert the
Kisoner so escaping had Ciimmilted cranta
!*»« majntatii, yet neither the gnnlcr nor nny
Mber ilnit procured his escape, hy the law suf-
fer any corpciral pnnishinent for ketting bim Bt
ts<^,' which, if admilted, might proi'e in con>
Kqueoce u matter of great danger to the cool-
Bumwealtb.
4. My neit reason is drawn 06 rrgii honore,
from that ereat honour the law doifa utirihute
«ato sovereign majesty ; and therefore tJie rule
•f law is, that ' solum rex hoc non potest ft.-
'eere, quod non potest injusie agere.' Ai>d
l^nefbre if a subject bath the donation, and
■^ kiif tbe pmentMioD to a duoch, wberv-
BDto the king prennia widuot Am wbjoctV
noniiiiauoD, hera liie juart inipedil lie* aeaiott
the incumbent, and the kii^ is in law no <lt*7
And Hotsey, Chief- Justice, in 1 H. T, fbl. 4.
sauh, That sir John Markham told king Bdw.
4. he could not arrest a mim either fur tmason
or fdony, as a subject migbt, becaase that if
the king didwrong, the party could nut have hia
aciiiHi sgHiost him.
What is the rei«m that aa action of false
imprisonment ties agoiost the Sheriff, if he deck
not reium the king's writ, hy wliioh he katb
taken the body of the subject, but this, beeatis»
tbe writdodimDiter nmrrarecatuaw eMplionit,
(which if it doth dm, h thai! abate, and is void
in law) and being fctumed, lite party wbea W
appoan may know what to answer, Mid ttw
court upon what to judged And if the king'*
writ under his gr«at seal caiusot imprison the
subject, unless it contains the cauie, shall then
the king's warrant otherwise do it vntboM cuu-
tainini; thtf cause ; that bis judges upon Tetajo
thereof may likewise judge of the sam^ either
to remain, or judge tbe party impriaoaed }
I should nrgue this point mora dosaly iumm
the statute of Mogoa Charta SO. ' Quod ntdlas
' liber homo imprisaneiuT;' llie Statute of West.
1. cap. 15. for letting peraoni to bail; aod the
Judgmenu liuely ^iven in tiM King's-Beoch ;
but tbe latter of these Statutca liaviug been hj
that bononrable gemtcmaa sir £dwaiid Coke
(ta wlmm tlie prDlessors of the law bsth ia thia
Had ail succerding aces, are, iind will be much
bound) already eipouaded unto us, and that
also fortified by thinie uaay cotempoiary expo-
sitions and jadgments by bin leariwdly cit«} ;
and there being many learned lawyci* here,
whine time I will not waste, wfan were prvsent;
and some of them perhapsuf counsel in tlie late
cause adjudged in the Kiiig's-Bench, wlicre ycNi
(to whose person I now meak) do well kttuw I
was absnit, being then ot counsel IB a ciDSe in
another court, and my practice being hi the
country, far reiDolefrOTi the Treasure of Anti-
quity, and Keciwds conducing to the clearing
of this point; thei*tore the nurrownMi of my
un deists tiding commends unto me sober igao-
ranee, ritther than presnmpiuoiiH knnwle^,
sod also commands me no further to troaUe
your patience.
But I will conclude with ttint which \ find
reported by sir John Dntis, wbu was tbe king's
.Serjeimt, and so, by the doty of his place, wouM
no dou'it maintain to his utienDoit the prerogtt-
tivej »f [he king his royal master; and yet it
was by liiiii thuf <snid in those Repnrta of Ihs
upon the case ofTanistry Customs, p. ^9, That
the bii]:;s of Rnghind ilways hive hwl a monnr-
cby-Toyal, and n'rt a uionart'liy-fteignoral: wlierc,
under the fifrt (>aiih lie.J •' ilie subj. cts are
fre'meu, an'1 lidie pr<ipnety 'i<: thilr goi'ds,
and free-hold, «nd inheritance in tlii if l.n'ls;
but under the latter th> y are u u.leiiis and
slaves, and bsve propriety in nothitig. And
therefore (saith he) when a tovhI mn '^rch
nMkes a new conquest, yet if )>e receive* any
75] STATE TRIALS, 3 Cu auk I. l62a.~Proceedmg» in Parliament r^iag to [7ff
■ee how thin Jui^meDt lies against m, and
what the Judges do say coacerBiog tb« taae."
of hii natton'i ancient iohabiuinis into his pro-
tection, tfaej and tbcir heirs after (hem Minll
enjo; tbeir lands and libcrtiei according to the
law." And there he voucheih thli Precedent
and Judgment Tollowing, giveu before WUliam
the Cooqueror himself, viz. " That one Shei^
bom a Saxon, at ibe [ime of the Conquest be-
ing ooDf r ol a castle and lands in Norfolk, the
conqueror gnve the same to one Warren a Nor-
man; and Sherbom djting, the litir claiming
tba some bj deKcnt accoiding to the law, it
was belbte the conqoeror himself adjudged Ibr
the heir, and tliat the gift thereof hy the Con-
i|iteTor WBSvoid."
If (hen it were tbus in the Conqueror's lime,
«iid by his own sentence and judgment, and
hath so con[inDed in all the succesaions ol' our
king! ever since, what dnutt need we have, hut
that his most eicelleut majestj', upon our hum-
. ble Petition pnwtraieJ at his feet, (which, as
was well said, is.the best passage to his heart)
vill voocbskte unto ns our ancient liberties and
birtb-rights, with a thorough reformation of this
and otber just grievances? Andsn I huiublv
crave pardon of this honourable house, that I
kave tnade a short lesson long.
Upon this and other arguments made in this
Cbsb of tbe Habeas Corpus, the house referred
tbe wbole bunncss to a Coninittee, to examine
all the proceedings ; concerning which, Mr.
Selden uierwards made report to the house,
that Mr. Waterhouse, a Clerk in the Crown-
Office, being examined before tbe Committee,
did confess, that b^ direction from sir Robert
Ueath, the king's AttomejT-Ceaeral, he did
writ« the draught of a Judgment in the Case
before-mentioned, which was delivered to Mr.
Attorney. And Mr. Keeling being examined
before tbe Committee did confess, that after
Mich, term last, the Auomej-Gcnerat wished
him to make a special entry of the Habeas
Carpus: to which he answered, he knew no
Special entrj in those cases, but only a RaaU-
IHur : but «aid to Mr. Attorney, that if he
jJeased to draw one, and the court after assent-
ed to it, be would then enter it. The Attorney
did accordin^y make a draught, and the copy
thereof Mr. Keeling produced to tbe commit-
tee. And farther said, thut he carried this
draught to the Judget, but they would nut as-
•eot to a special entry : nevertheless, the At-
toroey-Ocneral divers time* sent lo him, and
told him there nas no remedy, but he must ru-
ler it. Yet a week before tlie parliament met,
the Ailomn-Genernl c«lled for the draught
again, which accordingly be gave unto hini,
and aever beard of it more.
Sir Robtrt Fhilipi, upon this report, gave
his opinion, " That this intended Judgment in
the llnbeas Corpus, was a draught made by
some man that desired to strike us from all our
Liberties: hut the Judges justly refused it.
But if the Judges did intend it, we sit not here
(said he) to answer tbe trust we are sent for, if
we present not ibts matter to his lusjest^.
Let tbis businen be further searched into, and
March ST. The house proceeded in further
Debate of the liberty of tbe Subject. When
Mr'. HackntU resumed the debate of tbe
matter concemiog the Habeas Corpus.
JIfr. UtchetU.
The lute Judgment, said be, which lies in
bar, is only aB«ward, and no Judgment ; and
in the L. C. Justice's aisumeiit, chere was diV
word ^>oken. That tbe kimg might cummit or
detain without cause. For the kiug to commit
a man, is indigauBt rege : mercy and honour
flow immediately from ttie king, judgment and
justice ate his too, but they flow fiom liis mi-
nisters; the sword is carried before him, but
the sceptre is in his hands. These Siie true
emblems of a good king. The law admits not
the kinu's power of detaining in prison at plea-
sure. In ancient times prisons were but ' pro
' custodia, carceres non ad pcenam, sed ad
* custodiam.' Admit tbe king may commit a
man, yet to detain him as long as I.e pleasetb
is dangerous, and then a man shall be punished
before bis offence : Imprisunment is a macera-
tion of the body, and horror to the mind ; it i*
vita p^ori»orle.
Then tbe honse commanded that Case In the
Lord Chief Justice Anderson's Book, all of bis
own hand-writing, to be openly tetA, The
word) of the Report were these : .
" Divers penons fueront committee a seve-
ral temps a several prisons, sur pleasure sau*
bon cause pane de queux esiiant ameines en
Ronck le Uoy. £t pa^te e% se Commune .
Banck tueront accordant a la ley de la terre
mise a targe et discharge de ]• imprisonment,'
pur que aucuns giants fueront ostendus ct pro-
cure un commandment a les Judges que ils ne
feni iuent apres. Ceo nient meens les Judges
ne surcease mes per advise enter eux ib fesoi-
ent certain Articles le tenonr de qneux ensue,
et deliver eui al seigneurs Cbaoncelor et
Treasurer et eux suWribe avec toute lour
maines, lea Articles snnt come enauiint."
" We ber majesty's j us tices of both benches,
and barons of the Exchequer, desire your lord-
ships, that by some good means some order
may be taken, that her highness's subjects may
not be committed or deiaided in prison by com-
mandment of any nobleman or counsellor
against the laws ot the realm ; either else help
us to have access to her majesiy, to tlie end to
become suitors to her for tlie same ; for divers
have been imprisoned for tuinJt ordinary actions
and suits at the Common Law, until they hav«
been constrained to leave the same against
tbeir wills, and put the same to order, albeit
judgment and execution have been had therein,
to tlieir great lotses and griefs ; for tbe aid (^
which persons, her majesty's wtils have sundry
times tiecn directed tu sundry persons, having
the custody of such peiMns unlawfully impri-
soned, upon which Writs, no good or lawful
cause of imprisonment bach been returned or
nj
^AT£TIUA1£, sCnARLisl. less tht LOeriy qf Ihe Su^al.
[78
cntified. Wbsnupon, seconding to Ae laws,
the; imra been dischttrged of ibeir impriton-
nrat; wme ot frhicli persons no deltiertd,
L»c bees agalu comaiitti^ct to pnvin ia lecret
plaCM, Hid not [o an; CDmoioii or ordinarj
pmoD, or lawful officer or sheriff, or otber Isw-
ilillj autlioriud, to bave or keep a gaol; so
thit upon complaint mads for tberr deliverr,
the queen's courts cannot lelt tn whom to di-
rect her iDBJesCj'a writs; and bj thir means
jastke cannot be done. And moreover, dirers
nScen and seiieaats of London have been
miaj timei committed to prison for lawful ex-
enilmg of her majesty'* writa, lued forth nf
bcr majeMys courts at WesCminsCer ; and
IbcrebT her majesty's lubjacts and officers are
w tem6ed, that tKey dara not sue or execute
ber majesty's laws, her nrits and command-
menti: dirers others tuiTe been sent for fay
ponifsnts, and broiigbt to London from iheir
dwrlliniui, and by unlawful impriionment have
beea comtrained, not'only to withdraw their
IsaJiil wits, bat bMe also been compelled (n
piy the puraivanls, lo brini^ing such persons,
gnat sums of money. Ail which upon com-
plaint tbe judges are bound by office and oath
10 relieve and help, by and according to her
■ujcsly's 1b«i. And when it pleaselli jouc
lofdBhips to will diven of us to set down in
what cases a prisoner, sent to custody, by her
majesty or. her council, are to be detained iu
luisiMi, and not lo be delivered by her mnjrsty'a
Court or Judges; we think, that if any person
be commilted by her toujetty'E command, fnim
tier person, or by order from the Council-board;
Bad if Boy ooe or two of her council commit
one for High-Treusiui, uicb persons (o iu tbe
cases before committed, may not be delivered
by any of ber coucts, witbuut due trial by the
law, and juds;meut of acc)uittBl had: never-
(belcM the Judges may award the queen's writ
to bring the bodies of sucb prisoners before
them 1 and if upon return thereof, tbe causes
ofibeir couimiiment be certi&ed to tbe judges
B> it ought ID be : iben tbe judge; in the cuses
before, ought not to deliver him ; but to re-
nuuid him to the place from whence be came,
which cnunDt be conieniently done, unless
notice of the cause in general, or else in spe-
ctil, be i^iven to ihe keeper or gaoler that shall
haie the custody of sucb prisoner." All the
Jad^ and Barons did subscribe their names
to these Articles, Ttr. PaKUM Elix. and de-
livered one to the Lonl-ChaDcellor,and another
10 tbe Lord Treasurer: after which time there
(&I follow inoto quietness than before, iu the
came betbre-mentioned.
After the reiding of this Report,
Sa Edaord Coke said, That of my own
knawledge this Book was written with my lord
AodenoD's own hand, it is no Hying report of
a young student. I was solicitor then, and
treuurar Burieigh was as much against com-
aiitnieiit as any of this kingdom ; it was the
Wbiie SiBFes, that made chisstir. Let us draw
(Dwardi a concluaion : the'quesdon iSj Wlwlher
a freeman can be impriMaed by ttia kiiig.
without settinjE down tbe cause P I leave it a*
bare as £sop's crow, they that argue agailM
it, ' Humorei moci at non remoti corpusdA^
' struuoi.' It is ft mnxim, tbe common lair
lias admeasilred the king's prerogative, that in
no case it can prejudice the inberitunce of the
subjects; hud C)ie law given the prerogative to
that which is taken, it would bave set some
time to it, else mark nbat would 'follow. I
shall bave an estate of inheritance for life, or
for years in my land, or propriety ia my goods,
aod 1 shall be a tenant at will lor my liberty ;
I shall have propriety in my own house, and
not liberty in my person, ' Fertpicue vera ooa
' sunt probanda.' The king huth distributed
Ilia judicial ^wer lo courts of justice, and to
ministers ot justice ; it ia too low for so great a
monarcb as the kin^ ia, to commit toeu to
prison ; and it is ngainit taw, that men sliould
be committed, and no cause shewed, I would
not speak this, but that I hope my gracions
kinij wilt hear of itt yet it is not I, Edward
Coke, that speaks it, but the Reoords tbat
speaiis it ; we have a national appropriate Law
to this naitoii, ' diiisi? ab orbe BHiwnia.'
■Mr.Seldea.
I was sent bither, and Crusted with the lives
and liberties of them that sent me. Since I
came, 1 took here an oath to defend the king's
prerogatives and rights. I profess, though
once 1 was of council, and then I tpoke tor my
fee, for the gentlemen in their Habeas Corpus;
yet now I speak according to my knowledge
and conscienix.
The question is. Whether any suiject or
freeman, that is committed to prison, and the
cause lint shewn in the Warrant, he ought to
he bailed or delivered ? I think, conhdentlv, it
belongs to every suliject that is not a viUcin
that he ouuhc lo be bailed, or delivered.
I shall speak in tiiis course. 1. I will shew
the ReisoDS. S. Acts of Parliament. 3. Pre-
cedents. 4. Answer Ubjectiiiiis.
I. Reasons ilrawn from three heads :
1. From Remedies provided by ihe common
law aeain^t imprisomnent. For that precious
thing of Liberty there are divers renedies, by
which it appi-ars, if no kno*n cause be of tiir-
ther detainment, be is to he delivered. I will
not mention tbe action of false imprisonment;
but tbe writ A «dip el atia which i* not lakcu
awny, fiir that it ii in Magna Cbnrta. That
writ was seat to know, if the parly imprisoned
were committed for any cause of malice and
hatred, and this was to be enquired of in-Jury.
For tbe writ de homine repUgiaado, if one be
iiaprisoned under the shentf, he must bed*li>
vered, if he be not detained for a cause tor
which he is not replevisable. For the Uabeet
Corpns, the Keeper is to bring the body ' ad
' subjiciendum ec recipiendum.' If there ba
no cause, how can tbe Coart consider of th«
cause i For appeal, by Che old law in tlie time
of H. 1, one impristmed might bave his appeal^
as appears by Bractun, c 35. lii. dt conma.
Fleta, r. 48.
3. The second reawa is firou the oontidwa-
79} ?rATETRlAI^,'3CBAM.8g I. ]62S.
lioB ef Frrempn aod ViUeini. All admit
are tibtri hominet ; but dn but consider
diffnciice of ViUeins >nd FreeoisD, and I ki
aa dilTerence in their persons, bat only ibe
cannot be impriionedi m the uther n
Whoerer cui tiij[ 1 cao iinpri»in him, I
•&J he is cu<r villein. It is Uie sole di
«f Fiermen, liiaC tbejr cannot be imprisoued at
Eleanure, In iiiri time none hot Jews and Vil-
irns could be imprisoned, and confined. Tbe
3rws wtre as demesne villeini of iIk binf; ; be
could tend to them lo lend mouey, and if they
did not, lie imprisoned Ibern.
3. From matter of PuDishmenC. When any
thing is decbted by any net* atatuie to b« nn
oUence, it goes', Thiit he shall be fined and im-
priwned. To what end nere this in any act
of pariiameiit, if imprisooueiit wai at the
kine'i will }
II. For Acts of Parliarasnt, Magna Charia,
c. 19. In that net nhen it wm first made, it
waa ' nee eum in curcere mittimus,' IT Jub.
that statute waa made, and then it had those
words. The courae tlieu was to scod down all
acts of parliament and charters ti> tbe abbeys
ro be enrolled. .Matthew I'aris, 3-lS. & M'3.
recites thHtcharttT of 17 John,
Tbey object in Ma^a Charta, there
' terTiC,' and - ' '
imprisons do man at all, but it is meant the
process of law, 5 E. 3.. Upon some occauon it
was eiiarted, Vhiit none be attached contrary
lo the Urent Chaitt'rnnd tbe luw of the Innd.
125 E. 3, diven were committed to [h<i Toh er,
«nid no man knew wliereiore, whcreupnn whs
35 E. 3, made, 98 F.. 3, c, 3, 36 E. 8, n. 9. is
aiguTnrtiniprj^onnitTitj'perBpeciBleniBndatum.'
Hi. For PrecetleiJls, 18 K. 3, rot. 33 H. 1,
H. 8, rot. 9, iS Jac. rot. 1S3.
IV. Objectintii n^pinst it. Firft, Against
(be re-jaon ; a man may be cammitlcd tor a
point of atale that may not ht known : I un-
deritaiid nut muUen of state; I expected not
the objactiun in a CnurC uf Justice; and it
may hi? a word for any king tn try the courage
of nisjuclge<i, and to iiinpnte tlirre isn cause of
atate, wlien perhaps mere is iin cause nppears
to them. Itiaasif they sent him back to pii-
aon. ihey knew Dot whcrcihre ; which cannnt
be in a court of Justice, irtwre they are s\rorn
M do justice.
SecomiJy, As lo the Actsnf Farlianieai, tlie
Judges gave no answer, but only commended
tbrin; but the Attorney answered them vri'h
one blow t.i strike them all ; that they are la
be eoiisidered tir comnnn and ordinary cauaes,
. thirt hapi>en in WeKmiosior-hall nnly But do
but cousrdeT Mtfoa Cheita, which refleria
u^n the king; ' Dec saper eum ibitous.' By
til* law, if I brine "o Appeal of Murder against
a noUeman, wb«li i* my suit, heshill not be
tried by hi* peers; bilt if kr he indirted for
that murder, whirh is the hing'i s«t, he shall;
which shcwf, that that which is in Ua^na
Cbarta is meant of tbe king, thoufh it In aut
in Uw thiid psraw.
— Ptwxedingi at Parliament Tttatatg to [90
Third Olgectionnagaiasi the StaiDleofWeat-
mioster I.e. 15. But the king's command is
ihe conmaud of tile king by his justices; and
also tlie word, ■ Repleiisabie,' navu signifies
bailable ; bailable. La in a Coart of BeciiVd, by
the king'sjusticei : but repleiisahle, is by tba
(berjfT. Ilie sututa is to ibe sheriff, and it
shews the particular causes, and concludes that
rhe iheriff shall luw bii bailiwick.- Ihe sheriff'
coald never tvplevy onef irmurder, or matters
of the forest : but in the King'a-beuch far
murder, or matter^ of tlie f'lresi, they niuy, 3.
asais. 19, SI E. 4, 35. 9« H. 6, 4». Newhiii. If
any man be taken by our command, or by tbe
command of the king, if tbe theiiif take the
party, be must come lo us, we will grant ft
Supersedeas.
FoiirtUy, They object BEainst the pncedcnla
cited ; tbey are all oi' this kind, tbey were im-
prisoned * per mandatum dmnini refis,' er
' concilii,' without cause, or tbe cause is ei-
prrs^d. When the cause ii expreseed, and is
within the ciignizajice of the court, tbete they
bailed them ; but when it is for felony or trea-
son, it may be done beyond the seas, and then
tlie court iias no connizance of tbem. Wheti
no cause is set, yet bailment is alledged ; tben .
ihey answer divers were so bailcfl, but tke
cause appe.trs by Paper-Books ; hot 1 never
■aw these Books to be Records, and Judges of
Record made their Judgment in Records, and
the cause only appears by Record.
For the Resolution cited 34 Eliz. all iirec«-
- dents wereread, acta of pailiHmentindeea were
passed orcr, and yet that was not read. As
ive have tlisc liberty here, so I dare say, no
prinre in Chrislendoin doth assume tliis power
to imprison any without any cause. I lind no
sleps or mfi^ium of any sucli power.*
ttalurduy, March 99, ies8. Mr. Soiiaivr
spnke as fnUoweth :
My care wben I tpakt last was lo gire satis-
* " Die Veneris, Mar. S8. I rise to make
a motion. Yesterday a learned Argument was
made by Mr. Suiicilor, and II Edw. 1, was
cited by hiro, which makes clearly fur llie Sub-
ject, also for that talui popuii. 1 am sure that
' hhertas populi est snlus populi.' And Festus
himself ihatsent Paul to Agrippa was alawyer
of tlie empire ; and to send a prisoner without
si^ifying the crimes laid apunst bim, seined
unreasonable to Feslus to do. By the law of
tbe empire none were to hp committed abote
thirty da^n, and tbegnoler is under a penalty lu
certi]^ the cause of the prisoner's commitinent i
andifthegaolerhealnck.heistohelined. When
they speak here ul (lie Judgment given in the
King's Bench, tl>ey say the Prpcrdeiita were
mis-reciteil. Let a Sub-commiitee search into
those Judgments and Preredents. 1 heard
here a gumugar, nnd there is nothing but, B
rmillitur. Tlie course of the offiocr is to
enter fflouiipc, &c. aiid that i*iill ibey be da.,
lirered by kw, imd is all the Judgimeot tiuit
can be " £i US3. Pyraaii. 8m SaUea's
LiieinhisVVoflu.
Goo;;lc
61)
STATE TRIALS. 5 Chajubs I. lS2B.—ihe SMierty qfiU Sutject.
[81
in that tbe judges diiJ not err JD (heir late
uQon* ; but iftfaej did, it was cum patri-
tu: tbejudgo knew notliiiig of the cause oi
the (ectleoien'a impruantneot ; if the^ had
known ihe caose of their impHsuDneiit m pri-
TMc, tlxf would have appealed to bia majegtj
fer bit grace. For to reiterate all Lhe autho-
titin I iriil not, I hare lometiiiai; tg mv in the
ooint, tu put iuto the scale, nhtSa miffA have
laea thtn uid, had it not been fur the unhappy
difl«ieace that might have been between t^
\ma count in WetcmiMter-liall, the KiugV
bench and the Chaticery Court.
In 13 Jac divera were committed /or di
dwdicDce to the Decree of the Court of Clian-
oaj, M namelj Rovwell and others, and iti
nnived. That the Judge* cotild not deliver
*ach, and at the lame time some were i
■litled bj warraat from the king and the lords
«([he council, and this came in queslioii, Midi.
13 Jac andso oontitiUGd divera Ternu. There
ns theo r«c«nrse bad to tho«e arfpimeots, and
1 have ■ report here of that time ivhat the
judges did Uiea, part whereof I will read.
It wM reiolved bj Coke,* Crook, Duderidge
ud Houston, that the retuTD was good, and
that the cause need not to be ditclo^, being
' per maadntam coacilii,' as ' arcana recni'.
(iDd lhe report further saith, That in 34 Elii.
it «u resolved accordinglj), and bj Coke it
■Bi said, That if the privj-council commit one,
he i* not baitable bj an^ court ofjuttice, and
Stamford'* opinion is to, fbl. 79. &e what
Dpjnios the Jui^e had of the resolution in 34
£liz. and of Stamford,
To this sir Eiuntrd Coke replied ■■ This r^
pott moves not me at all ; that report is not
St 11 years old, but under ige, being in 13
c In truth, when I read Stamford, I wai of
Idi opinion at die first, but aitice, lookine into
thaw Records (■eforC'mentlooed, I waa of ano-
ibtf mrnd.f He brings in an ill lime 13 Jac.
irinn there was daahiiig between the Court of
Kuig^t~bench and Chancery, as nlio there were
tben man; of the tnitors that were of the
Piiitde[>Treason, committed ' per raandatam
' concilii.'
Upon idomitj, April 1, the Debate bsiog
J -, Bjjbe,, Philips mavad. That
) house was now read; for the
* Coke was then a Jad(e, aud ia faroor at
t " Coke of one mind, when a Judge, and
ia &ToaT; of another, when out of court, and
diacantented." (iJote to old Edition.)
Of Coke's conduct in pariiimeot, Mr. Bar-
nagton, in a Note to his Observaliona on Sta-
tata Wettmioater th« Secood, sa;^ " The
WepnblicatioD of ti» Journals of the House
of Comnioas sbewa, that he did not, aa a Meai-
hnofPariiament, prostitutf hia amaiing know-
la^ of muiiicipal law, to political
beieMnll;
niMaHiie
W ItMtitaio."
Mithoritic*, which he ciW in
question, thej tnight Jiear the resolution read
of nil the Judges in 84 £liz. about this matter.
Then
Sir Edward Coke stood up and aaid, The
glass of Time runs out, and something cast upon
us hath returded us ; when 1 spake iigainst the
Loans uud this matter, I expected blows, iind
somewhat nni ipoten, tboiigh not to the mnilcr.
ConcerniuE UiHt (tliat hath b«en objectedv I
did nhen I wns a Judge, I will say sumewhal.
Indeed, a motion mas made, but no argument
or debate, or resolution upon advice ; I will
never palliate with this house, there ii no Judge
that hath an upright heart to Cod, and a clear
heart to the world, but he hath 40me warrant
for every thing that he doih. I confess when
I read Stamford then, and had it ia my hands,
I was of that opinion at the Coundl-TaUe;
hut when i perceived that soime members of
this lionse were taken away, even in the face
of this houae, and sent lo prison, and when I
was not fdr off Irom that place myself, I weiit
to my book, and would not be quiet till I hful
satisfied myself. Stamford at the first was my
C' ^e, hut my guide had deceived me, tliere-
I swerved from it: I have now better
guide*, Acts of Parliament and oilier prece-
dents, these are now my guides. I desire to
be free from the impuiatiou that hath bceo
Aa for the Copy of the intended Judgment,
I fear, had it not been fot this parliament, it
had been entered ere this time; n parliament
brings Judges end all other men into grx>d or-
der : if any clerk had drawn this draughi, hs
would have done it by a prccedrni, and there
can be no precedent found that warrants it,
and therefore I believe that some other did it,
— This draught of the. Judgment, should it be
entered, «ilT sting ua to death, ' quia nulla
'causa fuit osienta, ideo ne fuit boileabile;'
and that it nppears (o be so by the Records. X
persuade myaelf Mr, Attorney drew it ; I had
a copy of my lord Anderson'* Report ofthA
Judges Resolution, 34 Eliz. long ago ; but I
durst not vouch it (and it was so in that copy)
for that it waa Apocrypha, and did not answer
bis gravity that made it, and yet it was citad
in the Erne's Bench, • That aU the Judges of
England ruled it so.'
Then tbe House of Commons came to tltt
fullowiag Hesalutions :
Rejolved upon the question, nem. con.
' I. That no Freeman ought to be detained
or kept in prison, or olhenvise restrained br
the command of the king or privy-council, or
any other, unless some cause of tbe commit-
ment, detainer or restraint be expressed, for
which by law be ought to be committed, de-
tained or restrained.
' II. Tliat the Writ of Habeas Corpus may
not be denied, knit ought to be g^nted to
every man that is committed or detHined in
prison, or otherwise restrained, tliougll it ba
by tbe command of the king, the privy-cow^
c J, or any other, he praying tbe same.
83] STATE TRIAI5, S Charles I. ie26--ProMduigt m Parltaniatl rtlaltag la [64
gcnrral, thui the Laws of Ena;lHnd are ground-
ed uD rcMon, more ancient than books, ccin-
sifting much in unwriiicn custom;, jet w full
of juitica mnd tma equity, that your most ho-
nourable prcdecesMrs and inceitora manj
times prapugned thtm with a nolvmu* tmtlari ;
and so niicient, that fmm the Saxon days, not-
withswiiding ihe injuriei qnd niins of lime,
they liBve continued in most parts ttie same, as
may appear in old rem uning monuments of the
laws or EtKelbert, the fint Chuitisn kin^of
Kent, Ina the king uf the West-Saxons, Ofia of
the Mercians, and of Alfred tiie great monarch,
who united the Saion Heptarchy, whose laws
are yet to be seen, published, as some think,
by parliament, as he says to that end, ' Ut ijui
' sub uno riKe, sub una l<^e regerenlitr.' And
though the Book of Litchfield, speakine of tbe
troublesome times of the Danes, says thnt then
' Jus sopitum erat in regno, leges et consueta-
' dines Fopitx sunt,' and > prava voluntas, vis,
' et violcotin magia regnabant qunm judicia vel
' iuslitia ;' yet, by (he blessioe of God, a good
kuig, Edward, commonly culled St. Edward,
did awaken ihnse law* , and as the old words are,
< Eicitntis reparavit, reparatas decnravii, de-
' coraias confirmavit.' Which ' coutirmevit,*
shews, that ^ood king Eduard did not give
those laws, which William tbe Conqueror, and
since that time, hafe swoni
' III. That if a' Freeman be
' detained in prison, or otherwise tesimined by
* the command of the kinj;, the privy-cnuucil,
' or any other, no cause of sucb commitment,
* detainer, or reslriiipt being rxpressrd, for
' which by law he oufiht to be commmed, de-
■ lained, or teitrnineil, and the same be rctum-
' ed upon an Huben^ Corpus, granted fur the
' said party ; then hs ought to be delivered or
And then taking intn enniid era linn the" Pro-
perty of the Subject in his Goods, tbey came to
this Aeiolution, to nliich ibete was not a aega-
• That it is the aniient and indubitable Right
' of every Fieemau, ihat he hnih a full ni^d ab-
' solute property in his goods and estate ; that
* noTax,Taillage, Loan, Benevolencc,oroilKr
' like charge ought to be commanded, or levied
' by the kine, or any of his minister!, without
rat by act of partiament.'
The Commotis having ahencd their care of
the Subjects in the Liberty of their Persons,
and Propriety in their Goods, did now prepare
to transmit their Resolutions to the Lords for
their concurrence ; and seveml members were
appointed to manage a Conference with'lhc
l!ord<i coiicernin); the same; and Monday,
.April?, tlie Conrtrtnrc was held, and upeued
by sir Dudley Di^s.
A Confehence desired by the Lords, and had
by a Committee uf both douses, concern-
ing the Hi^hts and Privilegef of [be Svb-
Sir Dudla/ Diggt,
Mt Lords ; I sbiUI, Thnpe, Huspiciouily be-
gin this Conference this day, with an observa-
tion out of nn Holy Story, in the days of good
king Josiah, 2 Chron. 3*, nben the Innd was
purged of Idolatry, and the grerit men went
about to repair the House of God ; while mo-
ney was sought for, there was found a Bonk of
the Law which bad been neglected, and after-
wanls being presented to the good king, pro-
cured the blessing, which your lordship may
read in the Scriptur«. S Kings 83.
My good lotds, I am confident your lord-
ships will as cheerfully join with tbe commons,
io acknowledgment of God's great blessing in
our good king Josiah, Ut the knights, citizens,
and burgesses of the house of commons, by me
tbeir unworthiest servant, do thankfully re-
member your most religious and truly hocioui^
ahie invitaiion of them to the late Petition, for
deaosing this land from Popbh Abominations ;
which 1 may truly call a necessary and a hnppy
repairing of tlie Ilouse of God. And, to go on
with tbe parallel, whilst we Che commons, out
of our good affectioiis, were seeking for nioney,
we found, I cannot say a Book of the Law, but
many, and those fundamental points thereof
neglected and broken, which hath occasioned
Mir desire of this Conference : wherein J am
int conunuided to *bew to your lordibips in
And here, my lords, by many coses frequent
in our modern laws, strongly concurring wiih
iliosii of the andeut Saxon kings, I might, if
time were not precious, demonstrate that our
Laws and Customs were tlie sAmc.
I will only intreac your lordships leave to tell
you, that as we have now, even m those Saioa
times they had their Courts-Baron nnd Conrts-
Leet, ami SheritF-Courts, by which, a* Tncitu*
Siiys of the Germans their ancestors, 'Jur&
' reddehant per pagos et vices;' and, I do be-
lieve, as we have now, they bad tbeir porlitt-
ments, where new laws were made * cum con-
' sensu pnelacoium, magnatum et totius coiu-
' mnnitalis ;' or, as another writes, ' cum coD-
' silio prelatorum, nobilium, et sapiemium lai-
' corum.' 1 will add nothing out of Glanvile
thai wrote in the time of H. 9, or Bracton that
wrote in tbe days of H. 3, only give me leave
to cite that of (^orte^cue, the learned Chancel-
lor to H. 0, who writing of this kingdom, aayi,
' RegDum illud in omnibus natioiium, et reeum
' temporibus, eiidem quibus nunc r^itur le^
' bus et consuetudinibus, regebatur.' But, my
good lords, as the poet said of Faroe, I may mj
of our Common-Law ;
' Ingreditnrque solo caput inter nubjla condit.'
Wherefore tlie cloudy part being mine, I will
make baste to open nay for your lordships to
bear more certain Arguments, and SQcb as go
on more sure grounds.
Be pleased then to know, that it is an no-
doubted and fundamental point of this so an-
cient Common-Law of England, that the Sub-
ject bath • Inw pnrperty in hit Goodtaml
6S]
STATE TRIALS. 3 Chjirlu I. iG-IB—lfie Liberty ^iheStitJtcl.
(86
Fosseanona, nhich doth preserve, as sacred,
ilut ai€tim ft tutuK, itiHt a tlie imr^of iudus-
irjr, and mother i)l'ci>urBge,and without which,
there can be no justice, uf which raeum et tuum
a the proper ubject. But the undnubted
birthnght of Tree Subjects, huth lately not a
little baea iorailedaDd prejudiced by pressures,
the more guevooa, UNmuse they biive been
punucd by impriMnmeat, contrary to the fran-
chises of this laud ; uud when, according to
ihe lans and slHluirs of this reiilu,redress huth
beeii saughi for in a I^;b1 way, by dernxoding
Uabeu Curput frum the Judges, and a dis-
charge or trial according to the Inw nf the land,
success bath fuiled ; thai now enfarceth the
Ckioimous, in this present parliament asiemhied,
to eiuiuioe Ly acts of parliament, precedents
•nd reasons, the truth of the En^isli Subjects
liberty, which I shall leave to learned gentie-
tuen, whose weighty Arguiueuu, I hope, will
leave no place ia your lords hjps memories. Tor
the errors and iiiGrmities oi your humblest
seivaot, thai doth thankfully nckuowledge the
great furour of your honourable and patient
atleotioD.
Me. LlTTLtTON's Akguheht.
Made by (he command of the House of Com-
Mous out of Acts of Parliament, snd nutho-
rilies of taw, expounding the same, at the
fir^ Cunl'crence with the Lords, concerning
theLibertyofthePeisonofeverj Freeman.*
My lords; .Upon the occa&ions delivered by
the gentlenun that la>t spoke, your lordships
hare heard the Commons have taken into their
serious con tide rati on the matler of Personal
Liberty, and after long debate thereof i
nnsaiistied, tliey have opon.a full search, nod
clear undersbinding of^ all things pertinent
to the qnestion, ananiiuously declared : Tlint
no Freeman ought to be comiuitted or detained
iu prison by the command of the King or Privy-
Council, or any other, unless some cause of
■be commitment, detainer, or reslnuut be ex-
prcKed, for which by law he ought to be com-
mitted, detaiDed,or restrained. And they have
tent lue, tvilh other of their members, to repre-
seNC unto your lordsliips the true gniunds of
such ih^ llesulutiun, and have charged me
patticul*rly, leaving the reasons of law and pre-
cedents for others, to give your lordships iui»-
foclion, that (his Liberty is established and con-
finned by the whole state, (be king, the lords
ipiriiual and temporal, and cummons, by se-
tenil acts of p.'irliiioictit; the authority whereof
is so great, th»t it can receiie no ansnei', ~
• This Arcuinerit of Mr. Littleton is prinCcH
in ' Cotton i Posthiiraa;' ns if made by sir Ro-
bert Cotton, hart. But whosoever consults the
Historians of those times, will find, that Diggs,
Littleton, Selden and Coke, nere the four
lawyers appointed by the House of Cc
tg manage Uiat memorable Conference.
by interpretation or repcnl by future s(
And tliote tliat I shall mind .vour lordships of,
are bo diretl in poi>it, (hiit iliey can bear no
other exposition ul ull, and mre I am they are
stUHn force.
The lirst of them is tliu Grand Charter of tlie
Lib(:ities of £ngl)iiul, fir-t nrnnied in the ITtli
of king John, and renewi'd in the 9 Hen. S, and
since cunRnned in parliiuuenl ah:<ve 30 titnes.
The words are these, ch. HO. < Nulliis hber
' homo capiatur, vel iiuprisunctur, aut disseise*
' tor de libero tenerneiito suo, lel lihertatibus,
' vel liheris consueludinihus suis, uut utlagcre-
' tur, aut exuletur, nut aliquo modo de:>iruutar,
' tiec super eum ihiinus. ncc super eum mi:tE-
' mua, nisi per legale judicium pnriuia suoruin
' vel pcrlcrifm teriEe.
These words, ' iiollus liber homo,' ic, nre
express euough, yet it is remarkable that Mnt-
tl«w Paris, an uuthnr of special credit, doth
observe, fol, 432, that the Charter of 9 H. R,
«iis the very samens thntof IT John, ' in nulla
milis- I
• his w
■rds; I
id that of kin,
■ily 'Nee
' cnrceruni mittemus;' and such a corruptiou
as ii now in print, might easily happen betwixt
9 Ii. 3, nnd sa E. 1, when this Charter was
first exemplified, hut certainly (here is suffici-
ent left in that which ia extant to decide this
question. For the words are, ' That no Free-
' man shall be taken or imprisoned, but by tlie
' lawful Judgment of his peers;' which is bv a
jury of perrs, ordinary jurors, or others, who
nre their peefs,,or by the law of the land !
which words, * Law of the lauil,' must of
necessity be understood in (bis nation, to h»
by due process of the lair, and n'lt the law
of llie liuiil generally, or otherwise it would
comprehend bond-men (Hhom we call Vil-
leins) who are e\cludcd by llie word ' Liber;'
for the general lavr of the land doth allow (heir
lords to imprison them at their pleasure without
cause, wherein they only diAar from Uie free-
men in respect of their persons, who cannot lia
iuiprisoned Mithout a cause. And that this is
the true understanding of these worils, 'Per
legem cerne,' will more plainly appear by di-
vers other statutes that V shall u>e, which do
expound the law accordingly. And (hough the
words of this Grand Chorter be spoken in the
third pcisoti, yet they are not to be understood
of suits bctnixt party and party, nt least not of
them alone, but even of the king's suits against
his subject), as will appear by the occasion nf
gt-dingof tlint Chartef', whidi was by reason of
the diOiTe-.ees betwixt those kings and their
people, and tlierefore properly to be applied
unto their power over them, and not to ordi-
nary questions betwixt sulject and subject.
.^coiidly. The word ' yer legale judicium
'pariuDi suorum,' immediately prectding ibc
other of ' per legem zvnic,' are meant of Triab
at the king's suit, and not at the prosecuiiou nf
Bsul>jFC^ And tlierefore, if a pettofthc realm
be airuigi^ed, at the suit of the king, upon an
Indictment' of murder, he shall be trietlby lib
W] SFATE TRIALS, 3 CBiLthtsl. iOSS.'-Procttdmgi in ParlkmaUrdMtmg to (M
pern, that is nolilet; but if he be appc^aled of
murder bj s nibject, his triol shnll bi bj in
onJinnry Jurj of ik fieeliolder», uapjicBreth
in 10 E. 4, 6, 33 H. 8, Bmoke Title Trials 143.
Stan. Cor. li. 3, ca. 1, !o\. 159. nnd in 10 E. 4,
6, it ig aaid, such is tbe meaning ofMaj^iia
CharIB, for tlie same reason: tbereforeas' per
'judicium pnrium SDonim' extends to tbe king's
wiit, BO shall these words ' per leeem lerrs.'
And in 8 E. S, rot. pari. n. 7, there is a Peti-
tion that a Writ under the privy-seal vent to
Uie cuariiions of the i^reat seals, to cau^e lauds
ID be seized' into the king's binds, b; force of
which there «ent a writ out of the Chancery to
the Escheator, to sciie, agsinat the furm of the
Granil Charter, that the king nor his tntuisters
shall out no man ofbis freehold without reason-
able judgment, and the party vna restored to
bishuid; wliich shewed tbe statute did c>;tend
to the king.
I'iiere was no inTosion upon this personal
liberty, tOl tbe time uf Edw. S, which vras soon
(esented by the snbject; fur in 5 E. 3, c. 9, it
, is ordained in these words : ' It is enacted tliat
'no iQao frum hencelbrth shall he attached by
* any accusation, nor fore-judged of life or limb,
' nor liis lands, tenements, aoods, nor chattels,
' seized into the king's hnnds, against the form
* of the Great Charter, and the law of the lonrt,'
9S C 3, c. 4, it is more full, and doth expound
the words of the Grand Charter, and is thus :
' Whereas it is contained in the Grand Charter
' of the franchises of England, that no freeman
' shall beiDipnsDned,nor()utout of his freeboid,
* nor free custom, unless it be by the law of the
''laud; it is awarded, assented, and established,
' that from hence none shall be taken by pe-
' tiiion or suggestion, made loour lord (be king,
' or to his cnuncil, unless it be by Indictment,
' or preseuttuent uf his good and lawful people
' of the same neighbourhood ; which such deeds
' shall he done in due raaaner, or by process
■ madb by writ original at the common law, nor
< that nonebeouted of his franchises, nor of his
* freehold, unless he be duly brought in to an-
' swer, and fore-judited ofihe same by the course
' of the law; and if any thing be done against
■ the same, it shall be redressnl and hulden for
* nought '
Out of this Statute I obserre, that what in
Magna Cbnrta, and the preamble of the Statute
ii termed' by thelawof^thelimd,'isin the body
of the Act expounded lo be by process made
by the writ original at the common law, which
is R plain interpretation of the words ' law of
* th« land ' in the Grand Chnrier. And I note
that iliis law was made upon the ctimniltmcnt
ofdiversco tbe Tower, no kuan yet kuoweth fur
38 E. 3, c. 3, it is more direct, this liberty
being followed with fresh gult hy the subject,
where the words are not many, but very full and
significant; ' That no man, of what stale or con-
' ditinn soever he be, shall be put out of hit
' lundt or lenemenls, itor taken, nor impiisoned,
* nor disinherited, nor put to death, without he
'bebt-oughtiiitoaiuwerl)} due process of law.'
rendered by due process
of the law.
se £. 3, Rot. Pari. n. 9. Amonpt tbe pe-
XJtions of tbe commons, one of them being tran-
slated into English outof French, is ibus; firat,
that the Great Charter, and the Charter of the
Forest, and other Statutes made in liistime, and
the time ot' his progenitors, for tlw profit of bim,
and his commonalty, be well and Grmly kept;
and put in due execution, without putting di^
turbance, or making arrest contrary to them bj
special command, or in other manner.
I'be ansn er to the Petition, w hich makes it an
act of parliament, is, ' Our lord the king, by the -
' assent of the prelates, dukes, earls, barons, and
' tbe comrooualty, hatli ordained and establish*
■ ed, that the said Charters and Sracaies be helrf,
._.!_ J, according to the said
observable, that the Statute*
were to be put in execution according to tb«
said Pttiiioii, which is, that no arrest sliould be
made contrary to tbe Statutes, by special com-
mand. This concludes the question, and is of
01 great furce as if it were printed, for tbe Par-
liament iloll is tbe true warrant of an act, and
many are omitted out of tbe Books, that are
extant in the Itoll.
36 E. 3, Hot. Purl. n. 23, eiplaineth it fu^
iher; for there the Petition is, ' Whereas it is
< contained in the Grand Charter and olber
*■ Statutes, that no man be taken ur imprisoned
' by special command without Indictment, or
' other due process to be made by the law, and
'oftentimes it hath been, and yet is, many are
' hindered, taken and imprisoned without In-
' dictnient, ur other process made by the law
' upon them, as well of things done out of the
' Fomc of the king, as for other ibings ; that it
' Mould iheretbre please our said lord to com-
* mand those to he delivered, wtiich are so taken
■ by special command against the form of tb«
' Charter and Statntes as aforesaid.'
TIlc Answer is, ' The king is pleased, that if
' any man find himsetf gricTed, that he come
' and mnke his complaint, and right shall be
' done unto hitn.' 3T E. 3, c. 18, agreeth in
substance with them : it said), * 'Though it b*
' contained in the Great Charter, that nO man
' be taken nor imprisoned, nor put out of his
' freehuld without proi^ess of the law; aere^e-
' less divers people mnke false suggestio.is to the
' king Itimwif, as n eti ibr malice as otbcrwiae,
' whereat the king is often grieved, and divers
' of tbe rfalm put in damage, against the fbn«
' ofihessmeCharter; wherefore it is ordained,
' tliatoll they which makesuchsuggestians,shaU
' be sent with the same suggestions, to tbe
' Chancellor, Treasurer, nnd his grand council,
' and tliat they there find surety to pursue their
' suggestions, and incur the same pain that the
' other should have bad, if he were attainted, in
' case that the suggestion be found evil ; and
' that then process of law be marie against
' tliemtvitboutbeing taken or imprisoned,a| ' '
69] STATE TRIAI£, S CuASLif I. 1038.— <k LAerty t^tftt Subject.
duter n cxplaiaed lo be withou {iroceia of
[90
11 E. 3, c 13. At the r«quMt of the Com-
Bou bj their felition pat forth in xhw paMia-
mcnt, to «cbe« miichief and damage done to
direraof his comrDOns by fntie nccusers, njiicb
sHratimes have made tlieir accusations, more
for rcrenjie and singiitnr benelir, than for the
profit of the king, or of his peuple; of which se-
cnstd ppnons some have been tnlLcn and caused
to come before ihe king's council b; writ, and
«be™ije upon (-rievous pains ngainst the law ;
it is ascnicd nad accorded for the good goTem-
tDce of the commons, That no man be put to
iBswer witbout presentment befiire juaticei or
matter of record, or by due process and writ
i>r^ii, according to the old law of the land :
Bad if any thing from hence be done to (he con-
tMrj, it shall t^ void in the law, and bolden for
But this is better in ihc Parliament Roll,
«ieie the Petition and' Answer, which m* Lei
ilie Acr, are set donm at large, 43 E. 3, Rot.
Pdri. n. 13.
TAt Fetitioa.
'Item. Because that many of your com-
'imnsare hurt and destroyed l>y false accu-
'Kn, who Dikke their accusatiims more for
' their revenge and particular gain, than for the
'profit of iho king, or of his people : aod those
' dm are accused by theio, some aro tateo,
' and others are made to come before the
' ling's coancil by writ, or other commaad-
* ment of ttie king, upon grievous pains, con-
' Inry to tlie Inw : That it would please oar
' lord the king, and bis good council, tbr the
'juK gnYenunenl of his people, to ordaJn, that
■'if hereoiier any accuser propose any matter
' for the profit olthe king, that the same matter
' be tent to the justices of tbe one bench or of
' the other, or tbe Assizes, to be enquired and
'detenninad accordiog to the laiv; and if it
' caaceni the accuser or party, that be lake his
' salt at the Common Law; and tliaC no man
' be put to answer without presentnient before
' the justices or matter of leoord, and by dke
' prosen and on^oal writ, according to the
'ajicient law of the land. And if any (bing
' henceforward be done to tbe contrary, that it
* be mid in law, and beM for error.'
Here by due prooesa and original writ, aC'
tording to tbe ancient law of tbe land, is meant
tin same thing, as ' per legeia term,' in Magna
CbsTta; and the abuse waa, they were put to
■acver by the commandment uf the klag.
Tilt King't Atuaer a thm :
' Because that this Article is on Article of
* ibe Grand Charter, the king willeth that this
' be done, as the Petition dolh demaud.' By
•Ws appeareth that ' per Itgpm terr*,' in
Magna Cbarta, ii meant by due process of the
kw.
Tbos your- lordships hHTehtnrd Acts of Pm-'
^•ment in the point. But the Statute of We*t-
nitistei, 1. c. lb, is utjred to dlspniTe this opi-
nion, where it it eipresdy said, TlMt a man ii
not repleriable, who is i^immitted by the com-
mand of the king ; therefore tbe eommand of
the king, without any cause sbeived, is suflicieiK
to commit a man to prison. And because the
streogth of the-Arguiaetit may appear, and the
Answer be better UHderstood, 1 will read the
words of the Statute, which are thus:
V ' And forasmuch as sheriSsnud others, wbicli
' have tnken and kept in prison persons detect-
' ed forlelouy, and otientimcs have let out by
' replevin such as were not replevinble, and
' have kept in prison such as were repleviable,
' becanse ihey would gain 'of the one party,
' and grieve the other ;< and 'forasmuch as be-
' fore this time it was not certainly determined
' what persons were repleviable, and what not,
' but only those that were taken for tbe death of
' a mitn, or by tbe cammindment of the king,
' or cf his justices, or for the forebt ; it is pro-
■ vided, and by ^e king commanded, that such
' prisoners ai were bafore outlawed, end they
■ which have abjured the realm, provera, ana
' such as he taken vvi^ the maimer, and thoBc
' which have broken ihe king's prison, thieves
■ openly defamed and known, end such as be
'appealed by approvers; bo long as the np-
' provers are living, and if they be not of good
' name, and such as bs taken for burning of
' houses frkmioosly done, or ftlse money, ot
' for connterfdting the king's seal, or persons
' exeommnnictile taken at the request of the
' bishop, or formauifestofiences, orfor treason
' touchiDg the kine himself, shall be in no wise
' repleriable by the common writ, or wtthout
But sui^h OS be indicted of larceny by i^
quests taken before sheriffs or beiliSii by ibejr
ofKce, or of light suspicion, or of petty larceny,
that anoanteth not ahoTe the value of nrelve-
Gnce, if they were not guilty of some otiier
neDy aforetrme, or guilty of receipt of fe-
lons, or of commandment, or of force, or of
aid of felony done, or guilty of some other
trespass, for which one ought not to lose either
life or member ; and a man appealed by an an-
t rover, after the death of the approver ; if he
e no common thief or defemed, shall from
henceforth be let out by sufficient surety, wher-
of die sheriff will be answerable, and that witl»-
out giving aitglit of their goods. And if the
sheriff, or any other, let any go at large, by
surety, ihatare not repleriable, if he be sheriff
or constable, nr any other bailiff, or audi as
hath a fee, which hath keepine of prisons, and
thereof be attainted, he shall lose his office and
fee for erer. And if tbe undei^sheri^ con-
stable or bailiff, or such as hath, fee for kceptiw
of prisons, do it contrary to the will of his ford,
or any other bailiff being not of fee, tbey ati^i
have three years impriaomcnt, and make m fine
at the kings pleasare; and if any man widt-
hold prisoner! repleviable, ^er that they have
ofieted sufficient snre^, he shall pay a grievoas
amercement to the king; and if be take wny
reward fortbe deliverance of such, he shall pay
double to the prisoner, and also ifaall pay a
gnevoui Rnsrcemnt to the- king.
gij STATE TRIALS, SChakluI. tan-i.—Jh-oatdinp in ParliamaU rdaiittg
The AniMr. Sheriff
[«
It miiat he ack now lodged, that n man taken
b^ itie com^iHQdinent of the king ii not repl<
viable, for lo are the exyieo words of this Sii
tutei but this niakcth aotliing sgniiwC [he De-
daration of the Uoute of ComnioDs ; fur thev
Mj not, iIk ■beritr may replevy such a one by
■uretics, tcilUtt mtmuaiplora, but that he is
. bailable by the kiufi's court ol justice t for tlie
better apprehend in v \vhereiif, it is to be known,
that there is a dillcrcnce between repleviable,
wliich 15 always by the ibei-iff upon pledges or
sureties. given, aud bailable, which is by a court
of record, where the prisoner is delivered to
his bail, and ibey are his jnolers, and may im-
prison him, aod shall suffer fur him body for
■ body, as appcareth 33 & 36 Edw. 3, tilob
Malnprize 12 & 13, where the difference lie-
twixt B;iil and Mainprise is expressly taken.
And if the words of ihtj Statute themselves be
obserred, it will appear (ihiinly, that it eitends
to the Sheriff aud other inferior officera, aud
doth not bind tlie linnds of the ju(%is.
He Preamble, which is tbe key that openeth
the entrance tutu the ineaning of ibe malierti
of ifie Lavr, is, ' Ikirasmuch ns Sberifis and
' others have taken and kept la prison persons
' delected of felony,' Out of these words I ob-
serve, that it nomitwteih Sheriffs, and than if
the Judges should be included, they must be
cumprefieudod under that general word, 'others;'
ithich doth nol-rintend to tbuseofan higher
iBok, buitoinferiors.forihe best by ail courses
isliiBt to be named. And therefore if a man
biiti; a Writ of Customs and SerFiccs, and
name Rents and other things, the general «h:ill
not include HomaMC, which is a personal scr-
tice, and of an liiglier nature, but it sball
extend to ordinary annual service, 31 K. 1,
droll 6r. So the Statute of 13 Elra. c. 10,
which bceinneth with Colleges, De.ins and
Cliapters, Parsons, Vicars, and concltides with
these words, ■ and others having spiritual Pro-
* motions,' shall not comprehend Bishops that
are of an higher de(rree, as appeareth in the
■rchhishop of Canterbury's Cnse, reported bj
sir Edw. Coke, hb. S, foi. 4fl, B.
And thus much is ejiplaiiied in tba very
Statute towartls tlie end, when it dofh enu-
merate tho^ who «ero meant by the word,
' others,' namely, Under-SUeriffs, Constables,
fiailiSs, &c.
'A^n, tlie words are, 'SherilK and others
' which have taken and kepi in prison.' Now
evetY man knuwcth. Judges do ncitlier arrtst,
nor keep men in prison ; that is the office of
Slierift and other iTifcrior ministers. There-
fore this Statute meant such only, and not
Judges.
The words are further, That they let out by
replevin such ns ure not replevlable, that is the
proper language fnr n SherilT; nay, mure ex-
press afterward in the body of ihe Statute, that
kuch ns are there mentioned, shiiU-in nonise
be repleiiable ^J the common Writ, wliich is
.' De homine rvple"iniido,' and is directed tn
tbe Sheriff, nor witbout writ, which is by the
X Meio. But that which receives no -
s this, that the command of the Jus-
tices, who derive ilieir auihoritj from the
crown, is there equal as to this purpose with
ihe command of the king. And tlierefore by
all reasonable construction, it must needs re-
late to odicers ttiat are subordinate to both, as
sberitfe, under-sheriffs, bailiffs, constables, and
thelike. And it iverea h a r&h exposition to say,
that the Justices miilit not dischari^e their owd
command, and yet ihat reason would concludi!
as much; and that this was meantoftlieslieriff
and other ministers of Justice, appears hy tlie
Recital, 37 Edw. 1, c. 3, anri likewise by Fleta,
a Manuscript, so i;illed, because the autliur
lay in the Fleet when he made the BooL ; for
he, I. 9, c. 59, in his Chapter of Toms, and
the Views of the tluudred Courts in tbe Coun-
try, setteth down tlie Articles of the Chaises
that are there to be inquired of; amongst
nhich, one of them is ' De reptegiabilibus m-
' juste detentis et irreplegiabilibus diinissle;'
which cannot be meant of not bailuig by the
Justices; for what have the iufeiior courts in
the coiiutry to do with the acts ofihe Juslicesf
And to make that more plain, he settelb
down in thatChapCer, that concerneih Sheriffs
only, the very statute of Westminster 1, which
he translates verbatim oat of tbe French Into
the Latin ; save that he renders taken by (be
command of the Justices, thus, * per judicium
' Justicinrioruio;' and his Preface to the Sta>
tu;e pla'uily sheweth, that he understood It of
Replevin hy Sheriffs ; for lie saith, < Qui deheut
' per plcf;ios dimitti, qui nan declamt hoc Sta-
' tutum ;' and ' per plt-nios' is befure the Sheriff.
But fi>r direct Authority, It is tbe opinioo of
Newton, chief justice, 33 Hen. 6, 46, where
his words are these : ' It cannot be intended
' that the Sheriff did suffer him to go at large
' by MalnDriie ; fur wlicre one is taken by tho
' writ of the kine, or the commandment of the
' king, he is irrepleviable ; but in such case his
' Iriends may coma to the Justices from hun if
' be he arrested, and purchase a Supersedeas.'
This Judge concludes, thiit the sberilf cannot
deliver him that is taken by the command of
the king, for that he is irrepleviable, which is
the very word of the statute : but, soJth he, his
friends may come to tlie Justices, and purchase
D Supentdtat. So he declares the very ques-
tion, that the Sheriff had no power, but riie
Justices had power to deliver him that is corn- ~
mitted by the king's command, and both ibe
antinnt and modern practice manifest as much :
for he that is taken for the death of a man, or
or the Forest, is uut repleviable by the sherllT,
r'ei they aie ordinarily haded by the Jusiicei,
tiid were hy the king's writs directed tj tbe
>heril& in the times of Edw. 1 nnd i, as appears
n the close RuUs, which could not be dune if
they were not bailable. And it is every day'a
experience, that the Jusliccs of tlie Xiil<;s-
beoch do hall tor murder, nnd for olfencts duns
in the Forest which they could not do, it' the
nord * irrc[ilc viable,' in Wesiminster 1, wer«
meant of the Justices, as nell usuf the ShtciOii.
93]
STATE TRIALS, SCiiAtusI. ]62S^iieLiber^<iftheSuh;ai
[94.
For Aatboritid that tiave been offered to
pniTe the coDtrHiy, thpv are in number chrea.
The 6ratu 21 fidw. 3, Rot. 9, ntiich also is iu
the Book of Picas in Pnrliament at the Tower,
npon an action tliere liruught, (bl. 44. It ia
Dot on act of parliitment, but a resolution in
pariiameot upon sn acnoii there brought, which
wai usual in those limes : and the case is, that
Strphen Ribez, the sheriff of the couDlies of
Leiccuer and \Va™ick, was questioned, for
that he had let at large by suretj, nmansst
others, one William, tlie sun of Wnller le Pe-
soDs, ^laintt the will and command of the
ling, wnereas the king had commanded him bj
letten under the privy-seal, that he should do
DO favour to any man that van committed by
tbeearlof Warwick, as that man was; where-
nnto the aherifF answered, that he did it at the
request of some of the king's household opon
their letters; and because the sheriff did ac-
bncnrledge the receipt of the kind's leltcn,
tbereupou he was committed to prison accord-
incto the form of the statute.
To thia I answer, the sheriff was jnstlj
punished, for that he is expressly bounil hj the
ktatote of Westminster 1,' which was agreed
from the beginning ; but this is nf>prtiof, that
ibe Judges tiad no power to bail thii mnn.
The next Autbonty is 33 Hen. 6, in the Court
nf Common Pleas, tbi. 98, b. S9, where Robert
Pojuings, esq. was brought to. tl>e bar upon a
Capias, and was retnnicd, that he was cotn-
mitted ' per duos de concilio,' (I believe it is
- nispriated for' dnos de cinciliOt'i. e. 'dnminoa
* de c^ncilio,' which is strongest against what I
TDainiHin) ' pro diver«is cnuais regem tangentib.'
Ami be made an attorney there in an action,
whence it is inferred, that the return was good,
and the party could not be delivered.
To this ihe answer is plain : 1. No opinion
ii delivered in that book, one way or other.
S. It appears eiprcasly, that be was brought
thither to be charged in an action of debt, at
another mBn'a.juit, no deiire of hia own to be
deKvered, or bailed ; and then if be were re-
manded, it is no way material to the question
in band. But that which is most relied upon,
is the (pinion of Stamf. in his Book of Pleal
of the Crown, lib. i, c. 18, f. 73, 73, in his
Chapter of Mainpriie, where he reciieth the
Statute -of Westm. 1, c 15, and then saith
thus: ' By this Stalate it appears, that in four
* cases at the Common Law a man wm not re-
'pleviable; to-wit, those that were taken for
' ' the death of a man, by the comniaml of the
' king, or bis justices, or for the forest ;' thus
far he is mou right. Then he goeth un, and
tahb, ' As to the command of the king, that is
' andentoodby the command of his own mniith,
■or his council, which it incorporated unto
* luin, and spake with his month, or otherwise
' eve™ Writ or Capias to take a man, which is
' tbeking'scommand, woatd be as much; and
' as to the command of the Justices, that is
' tnaant Umi mUolal* cOHHBamlnent, br if it
' be b^ rfieirordinary commandment, be is re-
' [ileviable by the siieritf, if it be not in some
' of the cases prohibiltd by the statute.'
The answer that I gave unto this ia, that
Stamford had said nothing whether n man may
he committed witliout cause hy the king's com-
mand, or whether the Judges ought not to bail
him in such case, only that such a one is not
repleviable; which is agreed, for that belong*
tu the SheriS. And because no man shouhi
think he meant any such tliine, be concludes
the whole sentence touching the command of
the King and the Justices, ihnt one committed
by the orditiary command nf the justice, is re-
pleffiable by the sheriff; or at least it nppean
not that he meant that a man committed bj
the king, or by the ^rivy-council without cause,
should not bo bailable by the justices, and he
liath given no opinion m thia cise; what be
would have said, if he had been asked the ques-
tion, cannot be knann, Neither doth it appear,
that, by any ihin^ tbat he hath said, he meant
any auch thing as would be inferred out of him.
And now, my lords, I have performed the com-
mands nf the Commons, and as I conceive shall
cle^u' tJie declaration of persona] Liberty, an
ancient and undoubted truth, fortified with
•even acts of parliament, nnd not opposed by
any statute or authority of law whatsoever. —
See Littleton's Precedents after Mr. Selden's.
Ur. Seldek's AacuMCNT.
My lords; Your lordships have lieard from
the geutleman tbat last spake, a great part of
the grounds upon which tiie House of Com-
mons, upon ntature deliberation, proceeded to
that clear Hesolution touchiug the llight of the
liberty of their Persons. The many acts of
Iiarlinments, which arc the written laws of the
and, and are expressly in tlie point, have been
read and opened, and such objections as have
been by fomc made to them, and some objec-
tions also made out of another act of parlia-
ment, have been cleared nnd answered. It
may seem now perhaps, my lords, that little
remains needful to he further added, for the ia>
farcement and maintenance of so fundamental
and established a Kiglit and Liberty belonging
to every freeman of the kin):dom. But in the
examination of questions of Law of Risbt,
besides the laws or acts of piirlianient, Uiat
ouelit chiefly to direct and reguiute every man's
judiiment, whatsoever hath been put in practica
to the contrary, there are comiuoaiy used also
former Judgments, or Precedents, and indeed
have been BO used sometimes, that (he viieight
:ason, of law, and of acts of parliament,
hath been laid bv, and resolutions have been
made, and that in this very point, only ujion
the interpretation and apprehension of prece-
dents. I?recedents, my lords, are good media,
or proofs of illustration orcaiiSrmatian, where
they agree with the express law: but they can
T be proof enough to overthrow any one
, much less seven several actsof parliament,
as the number of them is for the point. The -
House of Commoos tbetefore taking into co»-
•Mention, tlMit in thi* quntioa, bctnf of to
liigh a nature, that never anj exceeded it in
mn J court of juwiea wluttoerer, all the leveiml
wKjs tt( jutt caamiaatioii of the truth sboQld
be Died, have klM most carefully udbnned
themselTei of all former JudgoHmts and Prece-
doots coocenaing thi^ great point either waj,
and bftia been no less careful of the due pri-
95] STATETRIAUS. 3Crau»I. 1028 Pr»xi£i^mParliMmUretaii«gii> [H
thiif in tke laws of tbii land, a* a petiiion of
r^t to be uied in such cbmi fbr libertj of.thc
uenon, nur is ibere aiij legal caonie for ^n-
largonent to be token m luch casei i howw-
•*er the cantrarj' liath upon no ground or
colour of lav heea pretended. Now, my'lonli,
if an; man be so imprisoned bjr nnj wen com'
maud, or oiberwise, in nnj prison wbatuevec
throngb England, and desire by iiimself, or anjr -
other in hit behalf, this writ of UntieasUocpul
for ibe purpose in ibe court uf king's-bench,
the writ i» to be granted to him, and ought aot
10 be denied him, rvo otherwise than anotJiei
ordinnrj original writ iu the cliaocerf, or other
common process of law, maj be denied ; which
amongst other ihiivgt'the bouu resolved tbo,
upon mature deliberation, and I was com-
manded to let jour lordships know so much.
This writ is directed to the keeper of the pri-
snn, in whose custody the prisoner remaus,
commanding liini chat after a certain day, ke
bring in the body of tbe prisonei^ ' ad sub-
'jiciend. et recipiend. julta quod curia caa>
' siileniveiit, &c una cum causa captioDis et
' detentionis ;' and ofienliines ■ una cum causa
' detentionis' only, ' captionis* being oroiited.
The beeper of the prison thereupon retunu
by what warrant be demins tlie prisoner, and
with hia return filed to hli writ, brings the pri-
•onet lo the bar at the lime appointed; wbea
the return is thus made, tbe court judgcth of.
the suiiraency orintuScieacy of it, only out of
the body of it, without having respect unto any
other thing whatsoever : that is, they suppose
(he return lo ba true whatsoever it be: if it be
false, tbe prisoner may have his actioa on the
case against the gaoler that broi^ht bim. Now,
my lords, when [lie prisoner comes thus to tht
bar, if he desire to be bailed, and that the coutt
upon the view of tbe return think him in law
to be bailable, then he is always first taiiea
from tbe keeper of the prison that brings Ua,
and committed to the marshal of the KingV
Bench, and afterward* bailed, and tbe entry
perprtuailv is, ' Committitur Uariscello et
' postea iraditur in Sail' ;' for tbe court never
bails any man, until he lirat becomes their own
priaoBer, and be ' incustodiaUariecall' of that
court Bat if upon tbe returo of the Uabess
Coq>us, it appear to tbe court, that ihe pn-
ight not to be boiled, nor discharged
ttf two kindly either merely matter of Record,
or else the fomer rcMliuioos of the Judges,
after solenin debate in the point.
This point that concerns Precedents, tbe
house of commons have commanded m« toure-
wnt to your lordships, which I shall is briefly
as I maVi so I do it lailhrully and perspicu-
oyaly. To that end, my lords, before I caim
to the particulars of any of tfaate Precedents,
I ihall £r*t remember lo your lordships, that
which will Mem •• ageneral key for the open-
ioB and true appreheniioa of sll ihem of record,
without which key, no man, nnleta he be versed
io the enDries aiid coune of the king's-bcnch,
can poinbly aaderstand them.
In all cases, my lords, where any Right or
liberty betoi^ to tbe subjects by any positive
)bw written or anwritien, if there were not also
■ remedy by Inw, for the eajoying orr^aioing
(bis Kicnt or liberty, wb«i it is viohued or
taken Kcnx him, tbe positive law were most
vain, and to no purpose; and it were to no
Mrpose f<>r any man to have any ri^t in any
land or other mberiOnee, if there were not n
known remedy, that is, an action or writ, by
which, in some court of onHnary justice, be
night recover it. Andin ihiscasa of R^htis
Zjbertv of Person, if there were not a rnoedv
in Ihe law for regaining it, when it is reitmined,
it were of no purpose to ipnk of laws, that
•rdmi] it should not be restrained. Therefore
in this case also, 1 ibalt first shew you' the
Kmedy that every freeman is to tne for the
Tegaining of bis liberty, when he is against law
ivprisoiuKJ, thnt so upon the legal coarse and
ftrm to be held in using that remedy, the pre-
oedetlCa or judgments upon it, fbr ailjudgmenls
af record rise ont of this remedy, may be easily
nnderstoodn There are in law diven remetjies
lor inlarging of a freeman impriirnned, as [he
writs of MM el ati*, and of A«iu«« replcgiaa^,
besides the common or most known writs of
Habeais Corpus, or ' Corpus cum causa,' as it
» also called.
The first two writs are to be directed to the
■heriEFof the county, and lie iu some partieolar
ctMea, with which it would be nntitiiety fbr me
lo iroable your lotdsh^is, because they concern
not that which is coonnittcd f> my chaige.
But that Writ of Habeu Corpus orCorpus cm
tmua, k tlK highest remedy in law, for any
Mian that ii imprJeoac^ and th6 only remedy
Ibr him that is iupnaooeil by the special aH»-
■Mild of the king, or the Iwds of tbe Privy-
Cmdm^ witboat shewing ouiae of tbe comnnt-
wmU: Deither is there in tbe law any mch
ihii^aQr watthfM •vcrneatiaBofanyiMk
from itae prison whence he is broueht, ilwit be
is remanoed or sent back again, there to con-
tinue, until by cowse of law be may be deli-
vered; and ihe entry in this case i*. ' Remilr
' titur qnoiuquc secundum legem delibaratu*
* fuaril,' or ' Remittitur, quousque,' &c which
is all one, and- the highest award or judgmtnc
that eter was or can be given upon an Habeas
Corpus. But if the Judges doubt only whe-
ther in .law they ought to take bim from the
prison whence he oame, or give a day to the
sheriff Id amend his writ, as otteo they do, tlseK
they moand him only during the ttma of their .
doabt, or until Che sheriff liath aineuded hie
tetun, and the entry upon that i* ' Rca
only, or 'Beiaittitttr |>rii«n« pnad.* i
97]
STATE TRIADS, 3 Charles I. rMB.—lie LiterlytftlieSa!^.
Hfij more. Anil so ' remittitur' gencmtljr' it
nf tar Icii luoment in tlie awnrd apon xte Ha-
beas Corjms, than ' remittitur quousque, &c.
iKmever ihe vulgar opinions raised out of the
lHt»> Jutlgiii^nt. he to the c.iiitraiy. All ihcie
ihin^ are of most known nnd constmit use iii
the Court ot KingVBeDch, as it cannot he
double't but Tour lordsliips tvill ensily know
from [hegmvcHnd lenrned my1ard$ thejudges.
These twu coiirsM, the one of the entry of
' Ctnnniittitur Mariicall. et |io9iea iraditnr in
* Balliuiu,' and the nther ' remittitur quoujqne
' &c. el femitiitur' generall?, or ' remiitiiiir
* prisons pr!ed.' lugither witJi the nature of
the llabe«t Corpus, thus stated ; it will be eap
sier for me to open, and your Irtrdships to ob-
Krve, whatsoever shnll occur to die purpose in
tlie Piecedcnts of Itecord, to which I sIibII
coDie now in llie. particular. But before I
come to the Precedents, I am to Ik you know
tbe Resolution of the house of coromons touch-
ing the CDlargement of a maa .committed by
the comramd of tde king, or the privv-couricit,
. M any other, witliout cause shewed of such
commitment : it is thus ; That if a freenian be
commitCed or detained in prison, or otherwise
restrained by the command of the king, the
privj-council, or any olher, and ou cause of
*ach CQiQTnitineTit, detainer, or restraint be ex-
pressed, for wifich by law he ought to be eoni-
mitted, detained or restrained ; and the same
be rttnmed upon an Habeas Corpus granted
fijr the psrty, then he ought to be delivered
and bniled.
This Ri^solution, as it is grounded upon the
•ct* of parliiment already she^n, and the
muon or the law of the land, which is com-
mitted to the charge of another, and anon also
penei to you, is streaglheued also t)y
recedents of Ilccord.
he Precedents nf Record tliat concern
this point are of two kinds, for the house of
commans haih infarmed itself of such ns con-
cern it cither way. The first, such ns shew ex-
pressly, tint persons cnmniittKl by the .cnm-
mand if the king, or of the privy- coniicil, wiih-
ont other cnnse shewed, h.ive been enlarped
Dpon hail when they prated it; whence it ap-
Gars clearly, that' by llie law, they are ha ila-
!y and so by Habeas Corpus to be set at li-
betty : for though they ought not to have heen
committed without a cause shewed of the com-
milmenl, yet it istrue thai the reverend judges
of this land did pay such respect to snch com-
ritmenu, by ihe command of the king, or of
tbe lords of the council, (a4 also to the com-
mitment sometimes of inferior persons) that
npon the Habeas Corpo.s, tbey rarely used ab-
solutely to discharge the persons instantly, hut
only to enlarge theni.upon bail; which siiffici-
eatij securer and preserves the Liberty of ihe
Scbject, Bcordinp! in the la«s tliat yonr iord-
ihips have alrcaily lieard, nor in any of the
eases is there any difference mede between
■odi comniitments hy the lords of the council,
that are incorporated with hiih. The second
Ijnd of precedeati of Recotd aie, sitcU u have
Yttf, Ut. .
many Precedeo
l*en pfetendej to profe the law to he rontrnry,
and thai pcrsoni so committed oughi not to be
set at liberty upo|i bail, and are in the nature
of obiertions out of reccird. ,
I sTiulI deliver ilicut sinnmarily to your lord-
ships with all faith, mid iilso true copiu^of
them; out of which it sIihU appear clearly lo
your lordi^lirp!, tlmt of tliot>c ol the hYst kind,
there are iiu less than twelve, most full and
directly in llie pnint, to prove that persons sa
com mi I ted are to bedeliiereri upon bail; anrt
amongst those of ihe other kind, (here is not
so much as one, not one, that proves at all any
tiling to the contrary. I shall first, my lords,
go through them of the first kind, and so oU-
serve them to your lordships, ihnt such scruples
ns have been made upon them l>y some that
hove excepted agninsi them, shall be cleared
also according as I shall open them Bevemlly.
The lirst of llie first kind i^ of E. Sd's time,
it is in Pnsche 18 E. 3, Ilot. 33. The case na*
thus : king E. 3, had commilied by Writ, and
that under his preat seal (as nyDSt of the kiiig'»
commands in lh'>se tlhles were) one John de ■
Bildestoii, a clergyman, to the prison cf the
Tower, without any cause shewed of the conw-
mitmenl, The lieutenant of the Tower i»
commanded to bring him to the KingViutncli,
where he is committed to the marshal ; hut tin
couit aski of the Lieutenant, if there were any
cause to keep tins Bildestnn in prison,, besides
that commitment of the king; he answered
no ; whereupon tlie ItoU says, ' quia videtur .
' cur. hre. pned. sufficient, nnn esse causom
' prxd. Johan. de Bildeston in |irison^ dom.
* reuis llie dciinend. idem Johannes admitlitur
' per manucaptionerii Willielmi Je Wakefield,'
and some others, where the Judgment of the
point is fuHy declared in the very point.
The »ecoiid, in the first kind of precedents of
RecoH, is in the time of 11. 8, one John Par-
ker's Case, v.in> was committed to the sheriff
of London, ' pro sccuritate pacis,' at the suit of
one Brinton, ■ ac pro siispicinnefelouis' com-
mitted by liim in Gloucestershire, * ac per man-
' daium doUi. n.' he i* comoiilMd to th*
marshal of llie Kin|>'s- Bench, ' et poslea ista
' eodem termino traditur in BbU",' Here were
otlier causes of the commitment, hut plainly
one was by the command of the king, si^niiied
to the aherifis of l^oadon, of which they took
nntice: but some htive Inlerpreted this, as if
lad been for suspicion of
is bailable; but no man can think so of this
precedeni, that observes the contest, and under-
stnnds the grammar of it, wherein most plaittly.
' ac per niaiidaium dom. regis' hath no rafe-
rence to any other cause whHlsoBver,but is *
single cause enumeroied in the return by itself,
as the record clearly sbcwcth ; it is in SS H. 8,
Sot. 37.
The third is of the same king's time, it is 3&
H.& Rot. 33. John Block's Case; hewascom-
mitted hy the lords of the council ' pro siapi-
' cionfl fiMoniEE ac pro aliii causis ilk» inoventi-
STATE TRIALS, 3 Charles I. ie2i>—pTpceeiuig» in Parliament relating to [lOO
ThefifU) ofthii kind isof queeo Mnry's lima
alMj, it is P«sch. 4. & 5 P. & Mar. Rut. 45.
the Chsc orEtUard No'pott i He wub lirnught
iiitD the Kiiig's-Bench \>y Habeas Cnrpui out
of tjie Tower of Londun, ' Cum cauM, vit. quod
' commissiis fiiic|)«r mandncurai Cuncilii DnmioB
' lte|[iii», qui coniuiitiitur Marr. et iiuuiediure
' Craditnr ill Balliuiu.' To tliis ilie like iinswer
has been made, as to that otber case of Over-
toil's next before cited ; they saj that in ano-
ther roll of Bnolher term of the mme year, it
■ppeari lie was in question for suspicion of
coming, ftud it is irue he naiso; but the re-
turn, nndhia coaunitmentmentionedin it, have
no reference to any inch offence, nor holh tha
bailment of him relation to any ihinj;, but ta
the absolute coiDinitinent by the Privyn^iuncil :
So ihnt the ansvrer to the like objectioii mnde
^^iist Overton's Case, satisfies this also.
I'hc sixth of these is of nueen Elizabeth'!
lime, Mich. 9 El. Rot. 35. the Case of Ibo.
Lnurence ; tbi) Laurence come in by Habcu
Corpus, returned by the (hcriDli of London, tu
be detained in prison ' per niNiidat. Cuncilii
' DominB R^iii*, qui coinmittitur Marr, tt
' super hoc trndilur in Balliuin.' - Ail objectiDii
liuth been invented a^ainK this also ; it hath
been laid, ibit tbii mni) was pardoned, and
indeed it appears lo in (be margin of tlie toll,
wliere tlie vrord ' pardonatiir' i> entered -. but
clearly his enl;iT);emen( by bail vru upon tha
b'ldy of the return only, uncu which that aot«
of pardon In tlte margin of tbe R<ill liath no
relation at nil ; and can any man think, lltal a
man pardoned (lor what oHence soever it be)
might nut as well be commitied for soma Arca-
num, or ma^[ of stale, as one that is nut par-
doiinl, or out of his injiocency tvanh no pardon?
The serenth <,f these is in ibe same year, and
of Eoster-tcnn fallowing: it in P. 9,.Kot. 68,
Riihert Coiutable's Case : H« was broU|tht by
Habeas Corpus out of tbe Tower i and in tba
return it appeornh he was cimmitced there,
' per luaudatuD privati Concilii DnininR Re-
■ gina), qui cominiititur Mar. ct posiea isto
' eodcm ter* traditur in ball.' Tbe tike objec-
tion bath been mnde.tu thii, as that liefore of
Lnureuce, but tlie seir-saine aosner deaily ;»-
' bus, qui commiititur Mariscallo et immediate
' ex gmtin curix speciale traditur in Bell'.'
They conuniited him for suipicion of felony,
ami other causestbemdicreuiiloiuovin)^ Where-
in there might he matter of state, or whalsnever
else can be anpposed, and plainly the caute of
their eimimilment is not expressed ; yet tlie
court bqikrt liim without hnTing regard to these
unknonn causes that moved the lords of ll>e
council. Rnt it has indeed gome dilterence
front eiiher of those other mo that precede,
«nd fr-iin the oihcr nine also that bltow ; for
it ii agreed, that if a cause be expressed in the
rNurn, insomuch that ihe court cnn kuow why
he is coiuinitted, that then he may be bailed,
liutnnt if they kuow not the cause. Now ifn
man is committed for a cause expressetl, ' ct pro
' aliit ciiuBJs dAminos de coiicilio moveiitilHii;'
certainly the court can no more know in (uch a
due wh-it the cau^c Is than any other.
The fuunli of these is in llie time of queen
Mary, it is Pasch. 3 & 3. P. & Mar. Rnt. S8.
Overton's Case : Ricliard Overton was teiuM-
ed upon an H^ibeas Cprpui, directed to tbe
sberinsof Londou, tu hate been committed and
detained ' per niandatum prenobilium domi-
' norum bonornbilis concilii dominomm resis
' et rifiax,qui citmmittitur Marr. et immediate
' traditur in Ball'.' In aasiter to this prece-
dent, lir bjf way nf objection to the force of it,
it hath been sajd, that this Orerton at this lime
ttood indi' l£d of High-'Treaiun. It is true, he
ivas so indicted, but tliat appears in another
Ridl, that hath no relereuce to the Return, as
d>e Ketuin hatli no reference to that Roll; yet
they that object this against the fiirce of this
precedent, sny, that becun^ be was indicted of
■reason, tlierettire ihiugh he was committed by
the coniniHnd of the lordi of the council, witli-
out cause theweil, yet he was bailable for the
treason, Bn<l upon that ivos here bailed : than
which objcctiQii noiliingis miire contrary, either
to law or common reason. It is most contrary
til law, for that clearly eceiy Iteturu is (n be
BT^udged by the court tint of the body of itsetti
and not by any other collateral or foreign re-
conl «h;iiEiiev«r. Therefore the matteruf the
indictment here, cnnnot in law he cause of
bailing of the prisoner ; and so it is adverse to
alt common reason, that if the objection be ad-
mitted, it must of ueceisity tbllow. that whoso-
ever tball be cimmitted by the kine, or privy-
council, without OHuse .'shewed, aniTbe not io-
dicled of treason, or tome otlier offence, may
not be enlarged, by reaaaii nf supposiiion of
(natter of state. But ihat whosoever is«o com-
mitted, and withal stands so indicted, though
in another record, may be enlarged, whatsoever
the matter of iiate be for whii^ he was com-
mitted. The ahiurdiljof which assertion needs.
not a word fur further confutation, ns if any of
the gentipmen in the last judgnienr, oucht tn
have been the sooner delivered, if he had been
also indicted of tre»!ion; if so, TmliDn tmd
Felons tiiive the hi^licst priiilege in personal
lifaeitv, and that above all Qtliersubjecif of tbe
tisfiesfur ihem Iwth.
The eighth is of the rame .queen's time, in
Pasch. 20 Et. Rot. Ti, Jolm Browning's Case.
This Broanin; came by H. Corpus out of tha
Tower, whither he bad been committed, and
was returned to Imre been coininitted, 'per
' privnt. Concil. Domins Regine qu: t^unniitti-
' tur Mar. et posica isto eodtm termino trnditnr.
■ in ball.' Tu this It hath leeu said, tlintit was
done at the C. Justice Wraj's chamber, and
lint in the Court: and Urns tbe nuihority of tbe
Ereccdeiit hath been lessened or slif-htcJ. If it
ad been done at liis chamber, it would ba*e
prived at leti^t this much, that sir Christ.
Wray, then C. i. of the Khig'i^Bencli, being «
grave, Jeamed, and upruht judge, knowing th«
law til be so, did bail this Browning, anif en-
large him, and yven so far the precedent were
of vulueeuough;butitis plain that though ibo
STATE TRIALS, 3 Chai
101 J
H. Curput were returnable, tis indeed it »p-
pean in the Kecunl itxlf, at hit cliauiber iii
Serjeanti-Inn, vet be unN commiUed kijQ cu
(h« KiDg's-Beiicb {jroteutly, Knd left'ri'eil tl>c
coD^deratiun Of ciil.-irging tiira lo l!ie cuurt,
wlio afterwHrd did it: for tlie Record ms,
* Ex posien ulo eodeiQ tennino trndilur id bull.'
"licliciiinol Leof au
nnino trndilur
enlargement nt ilie C.
Ju^tilV*s chamber.
The ninih of this first kind is Hill. 40 B.
Hot. 62, Edward HurecDurt'sCuse; lie was iio-
prisoned in the Gntelioiise, and tliai ' per do-
' niinas de privaio condtio dominie regina pro
' cestis causis coi movent ibus et ei ignotis:' and
upon liis II. Corpus was returned to be tbere-
'"eonlT detained, ' Qui cnoimittitur Murr.
Tothis
1 ball;
■ti; colour of HtiisiTer liath liet
JM oSereil.
Tl>e lentil is Cateibie's Case in the Vacntion
after Hill. Term, 43 El. Rot. Itobert Cnte>bie
wa* <:amiuitted to the Fleet ' per warrHotuui
' divenor. pmnubiliuni viror. de privato con-
' cilio doming re^inx ;' be was brought before
JDsticeFeiiner, oneof tbe then justices of the
' per prvfat. Ednardam Feniier, et statitn tra-
' ditnr in bait.'
The ele»enth k Rich. Beckvitli's Case, wbirh
was in Hil. 12th of king Janies, Rot. 153. He
»*s retarned uuon his H. Corpus to havs been
committed to the Gatehouse bj dirers lord* of
the priry-council; 'Qui cointnittitur Mnrr. et
' postea isto todem terminn traditur in bnll.'
To this ithaih been said by some, that Qeck-
wiih' was bailed upon a letter, written by tlie
honh of tbe Council to that pu^-pose to the
Jui^ei; but it appears not tliat there was ever
auj ieller written lo tbein lo that purpose :
which though it Imd been, nould bare proved
Dolhing airiimst the authority of the Record ; for
it was never hrard nf^ that judges were tu be
directed in point of law by letters from the
Ipnb of tbe council, although it cannot be
doubted, but that by such letters sometimes
they have been tnoved to bail men, that ivoiild
or did not ask tlieir enlargensent wilhouc such
tetter^ as in some eiamples I shall shew jour
lordships ainong tbe Precedents of the Second
The twelfth and last of these is that Of sir
Tbo. Monson'i Case ; ii is Midi. 14 Jac. Rot.
117. He was committed to the Tnwer ' per
' warrantnm i diversis domittis de privaio con-
' dlin domini regis locum teoenti directum ;'
■od be was returned bv the limiennnt to be
Aeref ire detttined in prison, ' qui committitur
* Alarr* et super iradiiur hoc in mIL' To this
It bath been answered, that every body knows
by common fame, that this gentleman was
coRusiited for suspicion of tbe death of urTho.
Overbury, and that he was therefnro bailable :
a most atrsnge interpretation, as if tlie body of
the Return and the Wnrrant of the privy-coun-
dl itmntd be uoderetood, and adjudged out of
bmtt oolj. Waa there voc aa much a fame.
I S2H.— M« Li&erly <^the Sv^nl. [ lot
why the genilemen, that were remanded in tb«
Intt judgment, were committed, and uiiglit not
tlie sell-lame reasi ■ have served to eiilurt«
them, their olTeiice, if any were, being 1 think
iquch less thin that for whicli lliis gentleman
wBa suspeged?
And thus I bare faithfully openert the nuiH'
I ber of tnelve Precedeuts, most express in the
' rery point in qiiesii^in, aii'd clHarml the objec-
I tiuns that liave been made against theiD. Aiid
of such Precedents oCRecord'as are of the first
kind, which prove plainly the practice of funner
Mgei, and Judgmeiit of ihe court of kind's bench,
ill the very point, on the behalf of the subject,
my lords, hitherto.
I come next to those of the second kind, or
such as are pretended, that persons so com-
mitted are nut tu be enUi)^ by the Judge*
upoii the Habeas Corp»s hroi^lu, but tu rt-
main in prison ttill at the conmiaud of the
King or the Privy-Counciit. These are of two
natures; the first of theae are, where some os-
sein of (lie Kmg or the Privy-Couocil api>eut*
upuo the enlaigemeiit of a prisoner so commit-
ted ; as if, tlial because such atient appear., tlie
enlari;ement could nut have been witiiout such
assent. — The seconil of tliis kind, are those
which have been urged as express testialonie«
of tlie Judges denying bail ; and in tush cases, [
shall ojien these alto to your lordships : which
being done, it will most clearly appear, tliac
there ii uoihing at all in any of these, tliat
makes any tiling at all against tlie Resulution
of the house of commons, touching tliis point;
nay it is so Gir IVOm their making any thing
aeainst it, that M)me of tlieni add good weight
also to tbe proof of ihat Resolution.
For those of the first natur^ of this second
kind of Precedents, tbey be^n in tbe time of
H. 7. Tbo. Bruiixe, and diiers other:^, netc im-
prisoned in the King's-Dench ' ad mandaium
' doniiui regi>,* tliey npver sought remedy by
Habeas Corpus, or otberwite, for aught ap-
pears : But the Roll says, that * dominui rex
' relanHvit mandiitum,' and so they «'ei-e bail-
ed. But can any man thiuk, that this is an ar-
gument either in law or common reason, that
therefore tliey could not have been bailed with-
out lucb aiseni } It is coromoo in cases of
copimuu persons, that one being in prison for
surety of the peace or the like, at the suit uf
another, is bailed upon the release of the party
plainiilT; can it follow, that therelbre be coulit
not have been bailed without such release ?
Nothing is more plain than tlic contrary. It
were the same thing to say, tliat if it appear,
tbnt if a pluiiitilT be noii-iuit, therefore unless
be had been n^m-sult, be could nut jnive beeit
barred in the siiit. Tbe case last cited is Mich'.
7 H. 7, rot. a.
The very hLe is in the siunc y'ar. Hill. 7 H.
7, Rut. 13. The cose of Will. Bartholomew,
Wifl. Chase, and divers others, and ihe self- .
same answer, that is given to the other, clear*
this.
So ill the same ycnr, Pasch. 7 H. 7, Rot. 18.
Jobii Bcumoud's case, ij tbe tame in tuUianca
t03] STATE TUIALS, SCuaslksI. 16'2S.'-Proucdings mfartianaMTtluitiglo [10*
emiwer tKkt 'latisfies for tlie r^t berore cite4,
vitli clioK oih«r too, and the Mtf-ume aositer
Uto satisfies, that cleats them.
The next cRse a, Micb. 33 U. 7, Rot. 8.
Tlio. Yew's case ; he was conmuUed • sd sec.
* pacis,' fiir tlie security of tba peace, at the
suit afoiie Freeman, aiid besides, ' ail iiiondn-
■ ' tuiu dum. rtgis.' And first, ' Freeman re-
' iai;nicsec,pacis,' anil tben lir Juints lIol>-
bard, llie then l(bg'» A uomey -General, ' re-
< lixuric maiidatuiD dum. regis ;' nnil hereupon
hi! is bailed, Tlie release uf the Jung's Ati«r-
riej ni) more proves that he could not have
been eiilarijed wiiliouC tucli release or ass.eiu,
ihmi tjiat he could not h;ive been bailed n-ith-
«ut reluaic ufsurery ol tlie peace by Freeman.
Thu very hke is in Uill. g U. 7. Itot. 14.
Tlie crt^e of Humphry Broclic, which proves no
iiiorc IiiTo than the rest of this kind already
cited.
llien for tliis point also, Broome's cose of
^ueen Elizabeih'a time, is Tiiii. S'J F.J. Rot.
138. Laurence Brooue nas. cmninitled ii>
the Gate-iiouie ' per nianilatum diuu. concilii
' dominie rfgiuie,' and being reiurn«ri so upon
tha n. Corpus, is firkt cuiumiltcd to the Miir-
shfllsea a^ the course is, and then biiiled by the
Murt; which indeed is an express precedent,
that might perhaps well have been added tu
the DuiQber of the firjt twelve: which so phiu-
JT'sheivs the practice of enlarging pti'oners Li
this case, by jtidginent of the court upmt the
II. Carpus. But it is true, that in the Scroll:
of that year, wheie tlie bails are entered, but
not in the Kecurd of tlie H. Corpus, there was
II note, that this Broome wits bailed '
' datum priTati cuncilii;' but plainly i
any kind of argument, tli;it ther^te in Uw he
might ni>t liave beeu otherwise bailed.
Tlic silf-iaine is to he said of another of tliis
kind, ill Mich. 40 £1. Rot. 37, Wmden's Ca
.Tho. Wcnden nas committed to the Gatehoi
bj the quran and llie lords of tlie council ' pro
■ ccrtis cauiis ' generally ; he is brought by H.
Corpos into the King's-Bencb, and bailed by
(he court. But it is s^iid, that in the Scrolls of
that year, it appears that liis eiilai^eoient was
' per coiisensuin iluin. privati concilii ;' and it
is true that tlie ciueeu's Attorney did tell the
court, that the lords of the council did aueni
to It. Follows it IliereJbte, that it could not
bare been without such assent 1
Next is Hill. 43 £1. Hot. 89, »- hen divers
tenlleiueu of fecial, quality were iiapri^oned
bj the cominaiid of tlie privy- couucil ; the
queen beiiig graciously pleased to enlatge
Ulein, sends a commandment to the judges of
the King'»- Bench, that they sliould take such a
course, for delivering tliem npon boil, as they
should tliink lit : antTthey did so, and enlBrgeil
tbem upon writs of H. Corpus. Follows it
therefore, that this misht not hive been done
by law, if the parties themselves had desired it?
So ill Ttin. 1 Jhc. RoL 30. Sir John
Brocket being Committed t« the Gatehouse, is
returned to stand cummitl«d ' per mandatuin
• privati coticihi,' aiid be is enlarged ' virl
' wurnuitj u coDcilid piediclo.' But the ei
for this also.
The last of these,
la Jac. Rot, 119,
Gatehouse bj the lords of ilie counrii, and be-
ing brou^t iiiL» llie KiugVBeUth' by Unheal
Curpu^ IS enlu^cd upon bail ; but this iliey
say was upi(n a letter written fiom one of tbs
lords of tlie council to the judges. It is trap,
that such a letter was nritteu, but ihe auswct
to the former precedents of this nature, uieMf-
Gcieut t't clear ttiis also.
And in all tliese observe, 1. That it appears
iiot, lliat the party ever desred to be enlarged
by ttie court, cr was denied it. 3. Letters
either from ilie kini; or cuuncil cannot alter the
law in any case : »•> ttiut hitherto nutliing liatli
been brnuglit on the cunttary part, tliat hath
any t'rice or colour u£ reason in it.
Wo conie now, ray lords, to those Prece-
dents of ihe oiher naiure cited against the Li-
berty of the Subject: that is, such as biive
bL'eii used tu mislibe llie persons eo committed
may nut bu enlnt|;«d by the court. They ore
in number eight, but there Is not one of them
thitpioves any such thing, as your lurdsliipf
will phiinly itM upon opening them. The liist
four of them are exactly in the same words,
saving that the iiumes of the persons, and the
prisons dilfer ; I shall Uierefure recite them all,
one after uiiuther, <tuil tlicii clear them lo-
gethcr.
The first is Richard Everard'* case, Hill.
T H. 7, Rot.- 18. Ho and others were cm-
mitt.d tu the Alilishalsca of tlie liousliold, ' per
' mandntiim domini regis,' and so riiiurued
upon n H. Corpus into the King's-Bcnch ;
tvhercupuii the entry is only ' Qui cuuiiniuilur
'.Matr.'&c.
The second is Hill. S Hco. 7, RichardCber-
rr'i case ; he was ciiiiiinittcd lo the mayor of
Windsor, ' per mandatum domini r^is,' Bnd
so returned upon u H. Corpus ; and tlie eairy
is only, • tloi committitur Marr.' &c.
The third is HiU. 9 Hen. 7, Hot. .14, Christ.
Burion's case, wlio wud committed to the Mat-
shulsea of tlia houshold, ' per mandalum do-
' mini regis,' and so returitcd upon his Ilaleu
Corpus ; and the entry is likewise, ' Qui com-
' niittitur Marr.' &c. '
The fourth is Geurge Ursnick's c^e, Pasch.
19 Hen. 7, Rot. 10. He was commuted to tbi
iheriils of London, ' per maiidatum domtni
' regis,' and returned so upon his Habeas Cor-
pus, ' Qui conimittiti^ Marr.'&c.
These four have been used principally, at
express Precedents, to prove tliat a prisoner so
commilled caiinot be enlarged; and perhaps
at the fitat sight, to men that know not, and ob-
serve not tlie course and eutrie» of the court of
King's-B'encli, they may be apprehended to
prove as miicli : bulin truth they rather prove
ihe contrary, at least there is no colunr in
them of any such matter as they have bean
used for. To whicli purpose I beseech yoi^
lordships to call to your m "'""' ~
I first obserred to )'uii '
(he course of
101]
STATE TRIAI^, 3 Chable* L 1«S6.— tAe LiUny qftKt Sulijcct.
.[»»
thit coort. Where a priwoei U brought in
h; U. CuTpus, lie ii (tf lie be not lo be ic-
nuuiiJed) first ctnuuiilled tu Uie martlial of tiiB
oMirt, and then Laijerf as hi» Case [«|uire*.
This ii sif ceitaiD, na it on n^ver be otbtirwbe.
Noir tb«*e incD beiog thus cummitied bjr Lhe
npins coDiniiud of the king, big fine, ifou see,
ttkcu from the prtiont vihidwT tliey were first
comiuilted ; nhEreiu you ufaj ubsirTc, my
lordf, ihatif* general siupiciuD of matter of
Mjle vere of force in such a cn$e, it might be
u De«dfiil in puiiit of state, to have the prisoner
reoiaiji in thepriiuD, vrhera the king by luch an
absolute coinniand comniiited hire, u to bare
llim at all commitud. When they have takea
them from tb« priaoos where before they were,
the; commit ibem to the marshal of Uieir o«ra
cnuit, which is hut the first step to btiliaK
them. Now it appears not inileed that they
mre bailed, tor then ' TraJiiur in Ball' had
fiiUowed, bot nothing at all appears that ihey
irere denied it; perhaps they never asked it,
peilops tbey couid aot find such as »ere auffi'
oeat to bail them. And in truth, whenso«Ter
■nj man is but removed from any prison in
Ei^land (though it be for debt or traspess only)
■Bto that court, the entry is butiDthaself-saui*
•yitables as in these four cutes.
And in truth if these Proceediags did prove,
that, aor of the prisoners named in them were
Dot bailable, or had been thought by the couft
not to have been bailable; it miU neoetsarily
follow, that DO man living that is ordinarily re-
tBored fram any prison into the King's-Bench;
Of that is (hue upon any ordinary action of
debt, or actioB of trespass, could be bailed;
far avary man that is brought thither, and not
reoHUided, and every maa that is arrested but
fcr a debt or trespass, and was returned into
that court, is hkewise committed to the matahal
of that court, and by the self-same entry, and
not otherwise; ret these four have been much
sbKid on, and nave strangely misled the judg-
ment of tome that did not, or would not, seem
(o understand the course of that court.
The Gtth of this natare is Edward Page's
Casej it is Tr. 7 Ben. 8. This tfiight have been
wcUteckoaed with tbefonner four, had not the
miimiiy of the derk only made it vary from
them. Bdward Page was committed to the
Maiabalse* of the Itousliold, and tfiat
' mandatum domini regis,' and returned
thenfore detaiived, and tlte entn is ' Qui
' mittitnr Mar* bospitii dont. rctiii.' This wotd
' UaiT.' is written in the margin of the Boll;
tbia hath been used ta prove, that the judges
remanded tliis prisoDfr ; if they had. done m),
the ranaoding bod been only while they ad-
' vised. Mid not any such award wliich is given
when tb^ adjudge him not baiJable. But in
truth the word * committitur' shews, that there
was not any remanding of lum, nor doth that
ODurt ever commit any man to the MarsbaUea
of the hnuihold: and besides, the word ■ Marr.'
fur Marescallo in the marein, sliews plainly
d«t he was committed to the marshal of Um
Kat^t-beacii, and not mnandod, to tha Mar-
ahalsea of the houbb<4<l ', for sudi entry oftluC
word in the m&J^n, is piu-petuaUy in cases of
that uatore, when ttiej comoiit a mivi to their
own prisuH, and so give him llie first step ta
bailmeot,' which he may have if he aik it, and
can find bail. And ikubtlesB these words of
' llospitii-prsd.' were added by the error of ttie
cleVk, for waut.of disiiiictloo in his undentand-
ing, from the ' Mair.' of the Kiiig's-'beucb, to
theBiarsbat ofthebouiholdl
The siilb of th^se ia Thomas Ctnar'»Case ;
' : is 8 Jac. rot. 99. This Cesar was committed
D the Marsbslsea of the honsbold, ' per man-
datum domini regis/ and returned to Iwtlicre-
fbre detained, and indeed a ' remittitur' is in-
ihe roll, but not a ■ remittitur quonsque,' but
only that kind of ' remiuitur' which is oal^
used while the Court advises. And in truth this
far from proving any thing aguDst tha re-
solutioo of the house of^commons, tliat it ap-
pear* that the opinion of the reverend Judges
of that time was, that the return was intufficient,
and that if It were not amended, the prisoner
shall be discharged. For in the Book of Roles
in the court of iUich. Term (wlien Cesitr'a
Cm* was in question), they Expressly ordered,
that if the steward's marshal did not amend
their return, the prisoner should he absolutely
diachtuged : the words of the rule are, 'nisi
' senesodlus et marescal. hospilii domini Te|^
' Buficienter retumaverint breve de Habeas
' Corpus Thorns Ceesar dier. Mercur. proi.
' post quinrienam scilicet Martin, dcf. exnne-
' rabitur.' And this is also the- force of that
precedent, but yet there bath been an interpre-
tation upon this rule. It bath been said that
(lie judges gave this ru|e, because ihe truth was,
that the return was false, and that it was well
knowD, that tlteprisonerwasuotcnmmitiedby
tliE immediate cumniaud of the king, but by
the command of the lord-chamberlain, aart'
tbence(nsii was said) theymadetliiii rule; but
this kind of interpretation ii the fir^l that ever
was supposed, ihatjudies should take notice
of the truth nr felshaod of tlie ratum, other-
wiie than the body of the return could inform
them. And the lule. itself speaks plainly of
the Bufficieocy only, and not ol the truth or falv,
lite seventh of tbeae, is the Case of James
DeiinaMtres, Edward Emerson , and some others
that were Brewers, and were committed to the
Marshaliea of the boushold, ' per .mandatum '
' dotnini regis,' and so returned upon H, Cor-
pus: an^ it is true, diat the roll shews that
they were remauded, but the remonding was
only upon advisement. And indeed the grave
and "upright judliea of that time were bo careful,
lest upon the entry of the remanding, any such.
mistnke might be, as ml<;ht perhaps mislead
posterity in so great a pomt, thnt they wo«ld^
eapressly have this word < immediate' added
to the ' remittitur,' that so all men that should'
meet with the roll might see, that it wts done
for the present only, and not upon any debate
of the questioii. And bendcs, thnt there is no
' quouique' to it, which it usually added, ujien
107] STATE TRIAIS, SCflARUirl. lOQS.—Proceedmgi in Parliatnail nlating to [lOS
die highest award opoa liebite or resolnCion of
iiHill. It Jbc. Sir SnniiiGl Salton-
■tali was commiunl to the Fleet, ' per manda-
. ' tum domini regis ;' and benides, bf the Coart
' of Cluincerr, for disobeying an onler of that
oourtf and is returned apon his Habeas Corpus,
to be tbereHire detained. And il i» true tJiat a.
■ remittitur' is entered Id the roll, but it is onlj
» ' recaittitur priMtoe predict.' withnut ' qtious-
' que McuDilum legem deliberatus fiierit :' and
id truth it appenrs on the record, that the conit
|:aTe tbe Warden of the Fleet tbree sereral
dajs at *eT«a^ times tn ameud hii return, and
in the interim ' remit til ur prison ae prted'.' Cer-
taiuijr if the cuuit had thought that tlie return
bud been good, the; would not have given so
many several days to have amended it ; for if
that ' mandntum domini te^s' had been suffi-
cient in the- case, why need it to have been
UDendedf
Tbe ninth Bud last of these is, Tr. 13 Jac.
rot. 71, the Case of the said sirSai^uel Saltan-
■tall: he is returned by the Wtrden of the
Fleet, as in the i;ase before, and generally,
' reautkitur' is in the roll, nhich proves nothing
at nit, that therefore the court thought he might
not by law be uilarged ; and besides, in both
CBsei be stood committed also fur disobeying
' an order in the (Chancery.
Theiie are all that have been pretended to
the contrary in this great point, and upon the
view of tb^ thus opened to your lordships, it
is plain that there is not one, not so much ns
one at all, that pToveth any such thing, as that
persons committed by the command of the
(inf, or the lords of tbe council without cause
ihewtd, might not be enlarged ; but indeed
iha most of .them expressly prove rather the
contrary.
' Now, my lords, having thus g<me through the
Precedents of Record, that cnncem the pninC
of eitlier side, bclbre I come to the oilier kind
of Precedents, which are t*ie solemn llesolu-
tioos of Judges in former timet, I shall (at I am
eoramanded also by the -house of commons)
represent unto your lordships somewhat else
the; have thought very considerable ; with
which they met, whilst they were in a most
careful enquiry of whatsoever concerned them
in this great question.
It is, uijr lords, aDraueht of an Eni^ of a
Judgment in that great Caae lately adjudged
io the court of King's- bench, when divers gen*
tlemen iraprisoaed 'peaspeciale mandatnm
' domini rrgis,* were by tbe award and order
of tbe court, after solemn debate, sent back to
prison, because it wat expresily said, they could
not in justice deliver them, though tbey prayed
to be bsiled. The Case is famous, mid well
known to your lordships, therefore 1 need not
fiirtber (o mention it : as yet indeed there is
no Judgment entered upon the Roll, but there
is room enuu^ for any kind of Judgment to be
cnttired. But, my lonls, there is a form of a
Judgmentj a uott luutnal one j itich a on* as
never was in any such case before (for indeed
there was never before any case so adjudged),
and thus drawn on by a chief cleil of that
court (by direction of Ur. AiCurney-Genenil),
as the house was informed by the clerk, in
which the reason of the Judgment, and remand-
ing of those gentlemen, is expressed in inch lort,
as if it should be declai^ upon Iteconi Ibr
ever, ihatthe lams were, that no man could ever
he iniarged from imprisoninent that stood com-
mitted by such an nbsslute command.
The draught is only in sir John Hevening-
ham*s Case, being one of the gentlemen' thnt
was remanded, and it was made for a form for
all the rest. The words of it are after the tisual
entry of a Curia ntfcuarevu^C for n time; that
' Visis retur. predict, nee non diversis antlAuia
' reeordis in curia hie remanent, cnnsimilei
■ casus cnntinentibus, niataraq. deliberatione,
' inde prius babita, eo quod nulla spefialis
' causa captionis sive detentionis prsid. Johan-
' nis exprimiiur, sed generalitar auud detentui
' est in prison a pned'. per speciole mandatum
' domini regis, idea prxd'. Johannes remittitur
' pmbt. custodi mnrr. hospitii prxd. salvo CUS-
' todiend. ouausq. tee,' that is, ' qunusque s&-
' cundum legem dcliberatui faerit.' And if
that court, that is the liighest for ordinary
justice, cannot deliver him tttundttm Ifgem;
what law it there, I beseech you, my lords,
that can he sought for in any other mferior
court to deliver hiin.' Now, my lords, because
this draught, if it were entered in the floU, (aa
it was prepared for no other purpose) would he
as great n declaration, contrary to the manj
acts of parliament already cited, contrary to
all precedents of Fbruier times, and tn alt rea-
son of taw ; to the utter subversion of the high-
eat liberty and right belonging to every free-
man of this kingdom, and for that bspecialljr
also it supposes, that divers uncient records had
been loolied into by the court in like cases, by
which records their jutlgments were diri'cted ;
at all extant that with any colnur (not so much
indeed as with any colour) warrants thejudg-
■nent: therefore the house ofcommons tliought
ht also, thnt 1 should, with the rest (hat hath
been laid, shew tliis draught also to your
lordships.
I come now to the other kind of Precedents,
thnt is, solemn Resolutioiit of Juriges, which
helng nut of Record, mnaiii only in authentic
copies: but of this kind there is but one in this
case, that is the Resolution of alt tbe Judge*
iu the time of q^iieen Elizabeth. It wm in Uio
34th of her reign, when divers persons had
been committed by absolute commnnil, and
delivered by the Justices of the one Bench or
the other; whereupon it was desired, that the
Judges would declare in what cases prrton*
oommitted by such command were to be in-
iarged, which hath been variously cited, and
variously apprehended. The Rouse of Com.
Dons, therefore, desiring with all care to inform
themselves as fully of the truth of it as possiblj
the/ might, gut iaw thsir fatuids from a ineiubcr
109] STATE TR1A15, 1 CaARtEs I. lM8.~iAe Libertg nftia Suhjea
[110
alibat lotat, ■ Book at sdMtetl «*««*, coi-
ItcMl by a revciend aiiil learoed Chief- J UMice
ol'tiie ComnoD-Pletu, tiiAt was one of tbem
ilatpveibe Ktsolnfion, wUich i» eotered nt
lute in that Book ; 1 mean [he L. C- Justice
Aulcnoa, it ii written in the Book with liis
mn huid, ii <l« ten, of ibe Book ib, aiid hr>w-
wrer it hnth been cit«], and wns cited tii that
pint Judgm^HC uion l)ie Uub^s Corpus in the
Kiif VBeud- ' if it tmd been, that upon aucli
commitmeati'. je Judjies might not bnil the
FratHien; jel it is most pJain,thatiLithe Iteso-
totioa itself uo sucb tiling is cDntuiiied, bat
niher eipreswd the couinir;. 1 sball better
trpmeni it to' ^our lordships b; reading it,
ihiD bj o)>ening it.
Then it inu cead here. (See anit, p. 76).
If this Hesolution dothmolve nn^ thing, it
dotb iadeed upon ibe enquiry resalve full; the
aattv; to ibat vhich haib been pretended,
■nd eoou|h for the maintenance of the ancient
tad fiindamental point of J i ben j of thi.^ peiaon,
to be regained hy Ilubeas Corpus nhcn any is
impcisoned. And I the ralhef thought it fit
Mir to Kad it lo jour lordships, that it mi^lit
be at Urge heard ; because in die grent Jud^-
Bfflt in tlK KingVBenCh, though it was ciied
ittht Bar, ns against this pobt of persona]
tbenj, Rs nbo at the Bench, yet tliou);b everr
Ilnag elte of record lliat was U'cd, were at
hi^e read openlir, this was not fend either at
Ur or bench: for indeed if it hnd, ever^
kuer would easily have known the force of il
utuRe been indeed contrary to the Judiment.
Uy lordl, hating thus gone throuEh ihe
Auffi committed to me liy tlie house of com-
um>, ind havinc thus mentioned to your tord-
*ip», and opened the many Precedents of Re-
conii, aad that Ehaoght of the Juilgment in
thii like case, as also this Resolution; 1 bhall
to* (te I had leave and direction given me,
bkyoor lonlkhip* ihoiild be put to much trou-
ble aud expence of time in finding or setting
copiet at iw^e of thme things which I hare
cAtd) offer also to your lordships authentic
o^^ of thera all, and so leave tliem, and
wlijtioeTer else I have toid, lo your lordihips
(nitber canaideruion.
tltlnu Copy <>f the PraedaUt 1^ Record.
Inter Record. Dom. R^ia Ciroli in Tbesauro
Bccept. Scocmrii (ui sub custodin Dom.l'he-
Huimr. et Camerar. ibidem remanen. 'iz.
Plmta coram Domino Rege Bpitd Westi
nasL da Ter' Paache anno Ki " ~ '
)Kat cooqueM. Anglic 18.
li/ietar ot sequitur.
Rdi. 33. Adhuc de termino Pasch.
Domiiius Rex mnndavit dilecto et fideli^uo
Koberto de Dalton consubular* Turns (uk
IwHan velejiul'icum tenent' bre. suum in hiec
*irba: Edwnntus D^ gratia rex Anglis, Fran-
a«,et domiuus Hil>erni» dilecW et tideli suo
Kobenodc Dalton coustabulHr'Tuiriisua! Loa-
te let ejus locum tenenc salutem. Mandn-
■n quod Jobaanem Bildeuon capeHan' qoera
^ BMtr. Lo^Joo ad OMMlalum nostrum apod
Kegi Edwardi 3.
preit. Turrim vobis libera vit ab eisdem rcdpiatis
et io prisoua nostra Turria London pred. salvo
custodir* fee" qnouMfue aliud super hoc daxeri-
nnu demandand. teste meipso apud Turrim no»'
tmm London 30 die Marlii anno regni nouii
AiigliEE 16. regni vero nostri Fvdc>« 30. £t
modo scilt. in Craat. Ascen. Dom. anno regl*
nunc 8. coram domino rege apud Westminit,
venit Johannes de Wjnwick locum teneiis pred.
coiistab^'^- et adduxit cnmm Justiciar' hie Id
cur. pred. Johannem de Bitdestim qnem ille a
pref«t. vicpcomil. virtute brevis pred. recepit.
&c. £t dicit quod ipie a dom'muTrge babuil
mandat. ducend. et Iibrrand. corpus ipsius Jo-
hunnis de BildeMou prefiit. justiciar, hie, &c.
X.I qaesitnm est de pred. Johaiine de Wynwick
si quam nliam detentiunis prefat. Johatinis de
Bildesion habeat enotam. Qui dicit quod noa
nisi bre. pred. tantum. El quia videtur cur>
bre. pred. suScien. non esse predict. Johunnis
de.Bildesion prisun. Marr' regis hie retincn. &&
Idem Johannes dimiititur per innnus Willielm,
de Wnkefield recloris erde. de W illiiiEham, Jo-
hannia de Wynwick in com. Kauc. Johntinis de
Norton in com. Norftl Nicnlnl de Bl:iiideflbrd ,
in cnm. Middt, et Ko^eri de Brnmley in com.
StiitTord, qui euin inanucrperunt habend. euni'
coram domino rege in nctabis Stuicii Trin. ubi-
cuiique, &c. viz. Corpus pro corpoce, &c. Ad
i^uas ociabis Sanct. Tnn. coram domino rege
npud Weatm. ven. pred. pet maaut pred' El
super hoc mandnvitjustidiir. suis hie quo<ldaia
bre. suum claus. in luec verba, Ednardus Dei
Ijralia rex Anittis, et Francic, et dominus Hi-
beniiie,dilectitetfidel.sui9WillielmDS<-ot,etso-
ciissuis justiciar' ad plncita coram nobis tfneiid.
HSsignnt. saltern cum nuper maMdaverimiu di-
lecio et iideli uojiro Hobtrto de Dalton consia-
buliir' Turria anstne Loudon vel ejus locum le-
nen. quod Johaiiueni de Uildesion capcllnnunt
capt. et detent, in priaona Tutris pred, per pre-
ccptom nostrum pro suspifioiie contrnmciionii
magni aigilli nostri cum attacbiat. et aliia causi*
c.-iption. et detentiunem pred. tanjtent. salvo et
secur" dud fiic' coram nobis in Cnwt. Aacen.
Dom. ubicunqne tunc fuisiemna in AiiglLapri-
■onz Marescuil. nostr. coram nobis liberantf, id
eadem auousque per quendam iufbrmatorem ea-
semUs plenius informal, cuitod. et tuta iude in-
fin^natione pred. ulterius pred. super hoc fieri
fecerimusquod fore viderimus faciei id. secundum
legem, et cnnsneludinem regni nostri Alalia,
nos in casu quod dictus infonnator iMn Ten. co-
ram nobis ad inforraand. nus plenius super pre-
miss. Tolentes eadem Jobannem ea de causa
justiciar' deferra in hac pane vobis mandomiu
quod si pred. informetorin quinden. Sanct. Tiia.
proi. futur. tel circa non venit super hoc ple-
nius ioformat. tunc adveut. nusdem infonnator
it luiuime expectat. eidem Johanni super hoo
fieri (ac. justie. complement, prout f'lre videriti*
taciend. secundum legem et consiietudinera
refini nostri Anglrge, teste nieipso apud Weat-
mintt. 13 Mail anan regni nostri Anglic 18.
Recni vero nostri Frutc' quinto. Quo qilidein
bre, respect, fact, est proclamuio qund siquii
dictum regem adper preniisi. infonaare rd crga
Hi] STATETEIAIS, 3 Cbablbi I. HKli.-fPnctediitgiiHVarUaiiatiTat^gi6 [113
■niDm Jobannnti prosaqui volaerlt, qaod veniaL
£c saperhocrenitpred. W.ds Wakefidd,NU
chnla) de Wandsworth, Jo, Bryowjii, Jo, -de
Longiurai, Jo. de Norton, ec Rdgerus lie Bromley
oibbcb' de com' Midd' et man' pred. Jobanneni
de BiMeaton hnbcnd. com coram domiiio rege
de die in diem tisqae ad prefat' qninden. Saact.
Trin. ubicvniiae, be. Adquein diem anno IB.
toTMn dmiiinu leg^ apud Wtttminst, venit pred.
Johannes dc Bildeston per nmnlia pred. et ite-
rata facts eat proclam. in faroiR qua superiiu,
&c. et nuUas veoit nd dictum regetn informand'
&c. per qood concess. e« quod pred. Johannes
de Bildestop eat inde liiie die lolva Kinper itc-
lione dom.Tc^i li qua, &c.
De Ter' Sanct. Hillar' anno 32 B. S, et per
. cont. Rot. ejuidem Rolul. 31.
Johannet PHrker per Ricarduin Cboppia, et
■ W. Douosey vie' London Tirlute bievis doni.
regis de Intitat, pro pace versus ipsumjohannem
Parker ad sect. Johannis Bruton ds inde direct,
et coram rege duct, cum causa, \'u. quod idem
Johannes Piirker Cspt. fuil in civitaCe pred. pro
tiecu' pBcis pred. et pi;p susprcione feliinis per
ipsum apudCroiveall in com. Glocest. perpetraC.
per noinen Johannig Porker de Thdrubuij in
com. Glocest. corser, alias diet. Johaii. CImrbs
de eHdem com' su^enn, ac per niandaium dom.
r^ nunciat' per Kubertum Peck gen' de Clif-
fbrdi'Inn, qui committitur Mnrr" &c. et postea
■9te enrlem termino trnditur in Ballluu Thomz
Atkins de Thornburj pred. weaver, et Willi.
Note de eadem villa et dum, usque a die Pasche
■D unum men. neavcr ubiciioque, ftc. Et quod
idem Johauiiis Parker citra eundeui' diem per-
'•nnaliter compnruit coram justiciar' dom. regis
ad prox. general. GhoI Delilieratiou' in com.
Glocefr. prm. leoend. ad suhjiriend, et recipi-
end. en u inn ia, ei: singula qiix prefaL justiciar'
de eo tunc ordinare coiitigerint, &c. viz. Corpus
pro corpiirc, &c. Ad quein diem pred. Johnn-
ois fnrker licet ipsi 4. plant, solemniter exact.
ad coinp:irend. non veil, ideo caperet eum pier'
Trill, ad nuein diem ex octnb. IViit. postea
Trin. 31 H. 8, ex Crant. quindcn. I'lische. Ad
quem diepa hre ' et vie' return' quod ad IIusi.
t^nt. apud Lundon. die Lone proK* pout fest.
Sancle Suholnitice nftno regis H. 8, 25. Joiiaii-
nw Parker, et W. Nole ut!" Tuer. prnut palet
per bre. regis de Ter' Pasche anno '25. Ks.' pred.
De Ter. SancL Mirh. anno 33 H. 8,et per coat,
ejusdem Rot. 33.
Johaniietn Biii'cks per Eto. Baker nr. seneseall,
cur. Uarr, et Radum Haptou Mar'ejuidem cur.
virtute brevis d<im. regis de HiUieas Corpus nd
sabjiciend. et recipiend. Sec. eia inde direct.
coram dumino rege duct' ciun causa, viz. quod
ante adventum brevis pred. JohBOnes Bjiicks
cifHus fuit per mandatuin privati conialii dom.
regis pro sutplcinnc telonls, e[ pro aliis cansis
ilius. movent, a due' ad giiol. Murr. et ibidem
detent, virtute gaol' pred. qui conitnittitar Marr.
&c. Et immediate ex gra' cur. special' pred.
Johannes Blocks ds Mat^na Mnrlow in com.
Buck, weaver traditur in Ball. Tboma Signam
lUiioiidoneent. « Jobai>i)iWoOd<raTd deMar'
pnd. ta*lor, tuque in cratt. Sanct. Martin. -
ubicanqnF,&C. nine pleg. corpiu pro corpore,
Sec. Ad qoein diem comperuit et Robectos
Dmrj nr* et JohannesBorae gen. domino jua-
' dom regis ad patxm iu com' Buck, virtute
s dom. regis eis direct, domino re^ certi-
ficaverunt quod nullum indictameiitum de ali-
quibos feloniis et transg. versus ipsum Joliannem
Byncks coram eis ad preieiiB resident. El ul-
terins de lama et gestu ipsiuS JohaDnh Byncki
er Sdcram. proborum et l^allum boniin. com.
lack, ditigenter inqniri fecerunt, et nihil aliiid
reter bonom de eo coram eis est compertum.
jeo cooc^s. est quod pred. Jo. Bjncks de pre-
lissif eat inde line die ddibcratur per proda-
lationem et jur. prouc moris eit.
De Ter. Pas. anno 3 et 3 Ph. et Mar. Rot, 56.
Ricardut Overton nuper de London gen. per
Tlio. Leigh, et Joljanuem Maciiell tic' London
virtute brevis dom. regis et regine da Uabeas
Corpus ad slnad. ,rect, &c. eia inde direct, co-
ram Willielmo Portinan mil' capital. Uuticiar.
&c. duct, cum causa, viz. quod pred. Uicardus
Overton 9. die Octobr. ult. preter comniist. fnit
prison.de Newgate, et ibidem in eadem priton«
sub custod. diet. vie. deieot. ad nundatum per-
nobiliuto duorum boDorabilis coQcil. pred. rr-
gis et regine qui committit. Mair. &c. et im-
mediate traditur in Ball. Willielmo Overton d«
London f;en. et Johanni Tayler de porocliia
Sanct. Martini apiid Ludgnte London mere,
uii^e octab. Trin. viz. uierque maoucaptor.
pred. corpus pro carpure et pottea Tr. S. £1.
reiiin*, corpus OvercoD et pleg. suos ocialus
Michael, ad quem diem ci mens. Pasch. aij
Stem diem vie. reti quod ad Hust. sutim tent.
uildhnll civicatis London die Lunn post f^
turn Sanct. Gregor.epi.pred. W. Overtoo uil'
est el per bre. Pas. anno suprad.
Da Ter. Sanct. Mich, anno 9 et 3 P. et Mar.
Bot. 16. habet Chart. altocuL Trio. 9«t 9
Phil, et M.
Ricardus Overton noperdeLood.'gen, cnpt.
octab. Hill, pro quihusdam aids prudic. and«
indictat. est, ad quem diem Pasc. ad queid
diem ex Or. Animaram,
De Termino Pasch. 4 et 5 P. et Mar. et per
cont. ejusdem Rot. 45.
Edwardus Newport gen. per Robenuro Ox-
enbrid^e ndl' consiabular* Turris pred. virtute
bre. dominor. reftis et regino de Habeas Cor-
pus ad subjiciend. &c. ei inde direct, ad Barr.
coram domioo rege et regina ditct. cutn causa,
viz. quod ipse aibi commiss. fuit per mnndat.
conciiil domine reginis, qui committitur Marr.
et immediate traditur in Ball, prout, &i;. Kfc
postea sine die pv proclamation, virlulc brevis
de gestu ct fuma prout, Sic, Ilot. 17. ^usdeu
De Ter. Mich, anno 4 et 5 P. et Mnr, per
Cont. ejusdem RotuI, II.
Memorajid. quod 141 die Uctobr. anno 4 et
5 PhiL et Mar. Edwan^uB Newport de Hanley
in coin. VVigorn. nc capt. fait per Uxhridge in'
com. pred, pro stupiciuBecmntia fMtionis i]ua-'
113] STATE TRIALS, 3 Chablis L l628.-.-rie Liberty qfihe &V«i
[114
nuKlem p«c. tati vocac French crowDs, per
ipum it ilibi ia coin. Wigor. fier. luppoEit. et
n de causa per mandatum coucil' dominor.
itffl et rfgins commiu, ad barr. tunc ducC
fiW, noi coinmirtilur Marr. &c. et super hoc
idem Edwardiu Newport tradilur in ball. IIid-
ax Charge de Lattoo in can. Essex jjener' Ed-
nanlo H^ei de porncbia Saacti Oluvi, London,
S. JolnnDi Baker, clerico ordinar. London,
unl Gillde pmnchia Sand. Tho. Aposioli
LondoD, clotb-worker, et Richardo Parks de
BmsTUfiraTe in can. Wieurn. yeOiOBii, uique
Mtihis mil. ubicunque, &tc. v'a, ((uililil. pl^.
]iracEd. sub pcena 100/. et pred. Edwnrdui sub
pan* 2D0f. quas, &c Ad queiii diem compe-
nit et cominittitur conslnbular. Turris Lon-
■tonper mandutum coDcil. dam. regis et reej-
ix ibid, lalvo custodieod. quouuue, &c. Et
postea Pas. 4 et 5 P. «t M. imditur in ball,
prant paiet per tcrivect. finijm ittius ter. et
pom M. 5 et 6 P. et M, etonciat. per cur.
nqood tam per sac ram. 12 prober, et l^a-
Siua bominuin dc pred. com. Midd. coram
ioiB. rege et domina regina hie in cur. mea
partejurat, el oneral. quam per sacrament. 12
prabor. legal homiD, depred. com. Wigor, co-
ram Edwardo Sannden, et Johanne Whiddon
Bill, et alii» justiciar' dictor' 'dom. regis et i^i-
Dx ad pacem ac de diversis felooiis transgress,
ctkliismalefact.in eodetn com* perpeCrat. audi-
tai. et termiaand. ossignat. virtutc breris dic-
tor. dominor, re^s et reginz eis inde direct.
n ea parte jurat, et onerat. ad inquirend. de
|cstn et fama ipsius Edwordi compert. eiistit
quod idein Edwardus est de booii gestu et fuma,
)dra procUmatio est inde facta prout morii est
KCDDd. legem et conjuetudinem reg, Angliie,
&c coDcess. est. qnod pred. Edwardus eat inde
CM die.
De Ter. Pas. 9. El. Rat. 33.
Tbo. Lawrence per Christopher' Drap. roajo-
rem cmtatis London' Ambrosiuot Nicnolas et
Bica' Lambert tic ejusdem dvitatis virtute
brerisdom. regins* de Habeas Corpus, Sec. eii
iude direct, et coram donuna regii\a diet, cum
csDia, viz. quod 7 die Novembr. onno r^ni
. dom. EL nunc r^ins Anglix 8, pred, Thomas
iUiiTeiice indicto brevi nominat. captus fuit in
ciritate pred. et in (irisona dotn. regime tub
cmtod. pred. coram ric. detent, per mandatum
rancit' dom. region qui committrtur Marr. &c.
et soper lioc crndit. in ball* prout patet per
tcfiftct. finiom istius ler.
De Ter. Pasch. 9 El. Roc. 68.
Sobertus Constable Ar* per Franciscum Job-
un mil' locum tenend. Turris London virtute
breris dom: regini* de Habeas Corpus ei inde
<fiRct.et coram domina rei^nadlct, cum caiua,
yk. quod idem Robertas Constable prefal.
Franctsco Johson commissus fuit per mands-
tani priTSL concil' dom. regins s.-ilvo cuslodi-
nd. qui commiltitur Marr. Stc. et postea isto
•Ddeia ter. traditur in bnlL prout paiet inter
•nirect. Rnium istius ter.
Tr. Fas. anno SO EL et per conC. ^usdem
Hot. ea.
Jobaooei 8toitDiD( per Onei^.Uopion mil'
YOU 111. ■■
locum teneo' Turris domina re^nx London vii^
luie brcvis Hubeus Cor^ius ud subjiciend. ^
inde direct, et conun diltcto et Adeli Ch. Wraj
mil. capit. Justiciar, doui. regiuie ad placita
coram nobis tenend. assignat. apud ho^pitlum
suum in Serjeams-Inn Eleet-street London' die
Lunx, viz. 13 die Mnii duct, cum caasa'vii.
quod^pred, Johamies Browning commissus fuit
eidem locum tenend. per mandatum prlvuti
concir reginx salvo cuatodiend. &c. qui corn,
MaiT. &c. et postea isio eodeni ter. Imditur in
ball' prout par. per scrivect. fiuium istius ter,
De Ter.. Sanct. Hilkr. anno 40 El Regintt et
per cunt, ejusilem Rot. 69.
^ Ednardus Hareconit par Hugonem Parlour
cusCod. prisons domiim: reginie de Gaiehoute
infra civitatem Westminst. in com. Middl. lir-
lute breris dominn regine de Habeas Corp"*
ad subjiciend. &c. ei inde direct, el cornm do-
mina regina apud Weslminst. dicta cum causa,
til. quod ante adrent. hrevis pred. sell, 7. die
Octobr. an. regiii dom. regin. nunc 39, corpu*
Edw. Hareeourt, per duos pri«at. concii. dicta
duminie reginc ei commi&s. fuit salro ct secure
cQStodiend. certis de causii ipsos movent, et ei
ignotis, qui commitlitur Marr. £tc. et postea
isto eodem ter. traditur in ball, prout patet pet
scrivect. linium istius (ennini.
De VacnlioQC Hillar. anno 43 Et.
Robertus Cntesbie per Jobannem Pbilipi
guardian' de le Fleet virtule breris dominie re-
ginz de Habeas Car|ju9, ad subjiciend. Sec. a
inde direct, et coram Edwardo Fenner uno jus-
ticiar. duminE reginx ad placita coram ipsa
region teneud, auigiiai. apod Wincbesier-house
in b»r^ dc Souibwark in com, Surr. diet, cum
causa, viz, quod pred. Robertus commissus fiiit
prisona pred. pnmo die Martii anno 4S £1.
War. diverw>rum prvnubilium virorum de pri-
vato coDcitio domina regina in bac verba:
■ To tbe WartUn of (he I'leet, or his deputj :
■ The*e shall be to will and require you, to re-
' cave at tbe bands of the Keeper of tbe
' Compter of Wood-street, tie person of Itobert
.' Catesble, esq, and him to detain, and .lieep
' safely in that prison under your cbar^e, untJ
' you sbolt bave other direction to the contrary,
' wliereof this iball be your warrant.' — Et pro-
fat. Robertus commissus fuit Marr. per prefat.
Edivardum Fenner, et «iatun traditur in ball'
proat patet, &c.
43 Elii. Regina 19 Jac. Recis.
cnstod. prisona de Gatshouse in com. Jaidd.
virtuie brevis dom. regis de Habeas Corpus ad
subjiciend: ei inde direct, et ooram domino leg^
duct, cum causa, viz, qu.id ante advent, brevis
predict, scilicet 10 die JuLii anno regnidum,
Jac. regisDfigratiaAiiglia, Franc, et lli1i«mi«
fidei defenMir, ftc. 11 et Scot. 47 predict, Ri-
cardus Beckwith aibi commisaus fuit prisonv
predict, sub cubtod. sua linute'cjjusdrro war-
rant, sibi fact, et direct, per Georgium diviua
proviilemiii Cant, .archiepiscopum lotius An-
glic primal, tc meiropuliiun. Uenric. com,
Norlltemptoa domiuum guardiaa. 5 portuum
De Ter. Micb.
Thomiu Mou
115] STATE TKIAI5, S Chables I. i02S.—Prwxeding» m Porhanan relating to [llfi
et iin. de privato coticil. ro|l), Tho. com. Sof-
fulk dnm. camentr' re^ix familia ac sacr' cun-
cil. dom. reKii tjiwnrdum dumini Wooton gu-
bcrnnior regis familiie, Jobanncm dom. Stan-
hfipe tice-camerar' regi* famitiiB ; rujus war-
rant sequjlur in li«c»erhn! ' To AquilaWytes,
• Kec|iL-r of the Gatehouse in Weslrainfcter, or
■ his deputy: Wherca* it is Ihought meet that
' ftlilfs Rayner and Rjchard Beckwirh he re-
' sirnined of their liberty, and coiamittM] to (he
• prison nf ihc Gatehouse ; These ihail be to
' will and require you to receive the persous of
• tiie snid Rayner and Beckwitb into your
• charge and, sals keepioK <■> 'l^at prison, there
' to Kmain tititil you bholl have fiircher order
• [raoi OS in that behalf, for wluch this shall bo
' your warrant. Dated at Wliiiehtdl the 10th
• of July, leiS.'— lit poueaistocoden) temiino.
. 14 Jac. per cont, ejusd.
Rat. l-ir.
1 miles per Georgtuia More
locum t«ueut' lurris dom. rc^is Loodon' rir-
(ute breiis dom. regis de Habeas Corpui ad
•ubjicieud. &c. ei inde diract. coram tlomiiio
reg« apud West. duct, cum cauHn, viz. quod
«nte adventuDi brevis predict. Tbonua ribi
comoiiitus filit per warrant, adveis. dominis de
privslo concilio regis sibi direct. &c. Qui com-
iniiiitur Marr. &c. et super hoc tmdiiur in ball'
prout pater per scritect. Ha. isiiui termini.
De Ter. Hich. 7 II. 7- et per c«Bt. ejiudcm
Hot. 6.
Tho. Bragg junior, nuper de Ynningiton in
com' Hertford gen', Johannes Rswleus Duper
tie Lenister in com' prLiI* yeoman, Uob, tiheP'
man nuper de Lemster in com. predict. VVaher
Thomas nnper de eadem in cots' predict, bcp-
•Itr, Tho. Bullard nuper dc e«u)em in eoduni
coai. smith, Cadwallader up John DuV nuper
de Kerry in Harchia Wnlliie in com, Salop ad-
jacen. ffia. Hej-iViald ap Breingham, alias Slter-
fnnn, nuper de Lemper in com, Hereford Slier-
man, et 'Ihomas Turner nuper de Kingsland in
com. Ilerflbrd cmirMr, sant in custod, Marr.
ad malidatum dom. regi«, &c. ac pro aliit certfs
de eauiis prout patet alibi de record. Sic. per
record, istius ter. postca isto lermin, doininus
relaxavit inandatum suum « proiecut. predict,
Comparuerint per attorn. &o. Et quod utlag.
versus prefHC. Thoiiiam Bnjgg r«vocatur iiio
termiiio et predict. Johannes LUnleu* pro felon.
et murdro predict, traditur iu ball' prout patet
•lihi, &c. ideo hie Marr. de ejus curpore per
cur. esoneratur, &c.
Ter. Hitlar. 7 II. T. et per cant, ejutdem
Rot, 18.
W. Bartholomeiv, Johannes Bartholomew,
Wyiielmua Chnce, Henr, Carr, Tlio. Roteilev,
Tho, -Street, Robertas Feldoue, et Hen. Bancts
lunt in cuMod. Marr. ad cust. mandat. dom,
regis, &c. per record, isllus termin. ac predict.
AVilliclmos Chace pro pace Randnlplio Jowelen
inreniciid. &c. Pasche senuen. per poscea ter-
min. seqnen. dictus dommus rex maodaturn
suujn predict, quoad Willietmai Cbace rcla.^-
De Ter, Pas. 7 U. 7. et per cont. Sot. ejti*-
Johaunes Beomond de Wedoesbury in com*
Statr. ar* est' in cuslod. Mar" ad mandatuin
dom. regia, Stc. per record, ialiui ter' postca
scilicet Trin' 7 Her. 7. sequen' predict, Joban-
nes Beumoiid de maudato pieoict. exonerUua
exislit ideo Mar" de so per eandem cur' exotic-
De Ter. Mich, anno 13 11. 7, Rot. 8.
Tliomas Yewe de villa de Staff, m com'
Stafford yeoman, per Johnnnem Shawe cl Bi-
cariluui Haddon vie' Lon(bm virtutc bre^b
dom, regis de Habeas Corpus, ad sect, ipsiua
regis eis indc direct, coram rege duct, cum
causa quod idem Thomas Yewe attachiatui
I'uit per Bicardum Whittington seqeant apud
BuyuarU's Castle civitatis predict, et prisouft
dicti dom. r^ia infra eandem civitatem salvo
cuitodiend, causa pro suspicione felcn, apud
Coventrie in com,' War' perpetrat, ad sugges-
tioncm WiUiebni King innholder, ac inbuper
idem Tbo, Yewe detinelur in prisona predict,
virtuie cujusdem alterius quercl. venua ipsum
od sectam Johannes Frceniaa acrjcunt de eo
quod inveniat. ei iuauflicleiid. secur. pacis ia-
Ac ulterius idem Tho. Yene detent, est in dicta
prisona pro 33/. debit, et ^i. 6d. dampnis ec
custag. quoa Robertus Corbet mercer, ex co^-
nitione ip^tis defend, versus cum recuperavit in
eadcm cur, coram uodcm Jiihaonc Waiger
nuper vie, Ac etikni idem llio, detinetur io
di<la prisons ad mandatum domini regis, per
Johannem Shawe, aldrrinan, clvitatia Loodon,
qui committitur MaiT. &c. pn^tva scilicet ter.
Sanct, Trill, anno 19 regis U. 7, predict. Jo-
hannes Freeman relaxavit sccur. pacis versus
euadeni llio. Yewe dictus';; Robertus Corbet
cognovit ^e (am baiisfact. de debito ct dampnia
predict. Ac Jacobus Ilubberd atiomat. gene-
ral, dum. r^is relaiavic nanditum doai. reps,
ac pro luspicione felonix predict, traditar in
ball. Sjmon Little de Loudon taylor, et Jo-
hanni A)he de Lcndon ikinner, uwjue octabis
Mich, ubicunq; £fc. Ad qui diem coiBperuit
et Robertus TbrugmortOD miles unui oustod.
pacis predict, com' Warr' rtluni' ^uod DulL
mdictament, de alimiibui felon' sivc irwiyresa.
versus prefat. Tho. Yewe comm.eo et sociis ad
presena reaidet, et ulter, virtute brcris dom.
regia sibl et sociis tuis direct, per sacrament.
IS probor, et legal, huminum ae villa de Co-
veutry predict, de gestu et fama predict. Thome
diligeuter inquisiiionem feceruQt, et nihil de eo
preter bonum coram eo et sociis suis eA coin-
pertuni led de bono gestu et (kma, ideo con-
cess, est quod predict. Tho, eat inde tins die.
Ter. Hillar. anno 9 H. 7, et per cont, ejnsdeni
Rot. li.
' Homfriddi Brocbe nuper de Canterbi^. in
Cantabr. scholar, per Rnbertuin Willoughbi*
tiom' Brook mil. tcntKbalLliOBpitiidoin.Trgifk
liT] STATE TRIAI3> 3 Cuahlv I- iOas.—llie Liberty qft/ie 9ul^.
iWi
1 Di^bie mil. Man^ cat' Mar/*
bo^iii predict' virtute cujusdem brevis doiu.
n^ de HabcM Corpos ad lectaia ipriiu ragia
■d HaaiJ. reel', &c, kd sect, partis utlog. eis
mde dirtcL coram rej|e ditct. cum caiua viz.
ifttoi Idem Humfridiu cooiiniisui fuit Cooi.
Mair' botpilii doin. regis Gt bac da ojaam tf^
DOB alia idem Humfridu* in priiona pred. de-
linenu', qui CQuiaiitUtur Man' &c poitea Pw.
>qiwu' m relinijidt -mandatum suun) capital.
jiHUciar' per Tho. Lovett mil, Mten' et pro
•tlii|.prea. traditur in boll, proutpatet alibi.
Pe To" Sec. Triait' anno 39 £1. et per cant.
Rot. ejuwleiD lis.
Lawrence Brooine prr Hu^oQCm Parlour
cuaod. prbone domine regine de la Gatehouse,
muu brevii domine reeiue de Habeas Corpus
ad ubjiciend. &c. ci inde direct, et coram do-
aiiu regina apud Westniiist' duct, ciim cauw
Tiz. ifiod prdfict. Lawrence Uroome in arcta
OMlad. sua remanset per mandatum duomiD
de concilia dicte domine r^tne pro certidcautis
«H morent' qui committitur Mist' et pnstea
but oodeoi tcnuiao traditiu in ball, prout pa-
tit,&c.
PsScriTect. Fin. Ter" Scf Tnn. anno 39 El;
Laurence Broome de Parva Baddow In com.
pred. huabuid. tiadltnr in tmll' nd lubjiciend.
hz. ad mnndat. prirat. concil. dornine rrgine
igper Habeas Corpus,--- Verau 9 Rando. Mayall
lie Hatfield Bevcrell in com' pred' gencr. ;
Tetsus Henrico Odolt de endein gen. ; versus
Will Eckaiden de WeMminsc' bricklayer ; ver-
ms Elc Mor^n de Weslminsl' litbourer;—
I'terq; sub pens 40/. rt princeps sub peim
100 marcsrum. — Pro soipicione proditiuuis
cniu Johaane Smith mil.
Oe Ter' Set' Micfiaelis anno 4GI. et per cont,
Rot.'ejusdemSr.
Tba, Wradea per Hii^nam Parbur gea'
otAod. prisoae domioe regme de le Gatebouie,
virtate brevii doniina regiiie de Habeas Corpus
ad tabjiciend. &c, ei inde direct' et coram do-
Mina reeiaa apsd Westm* ducc cam cauia,
•B. quod 18 die Juirii, annn regni domiTie El.
ouc reiine Anglic 5S. corpus, &c. infra nomi-
iMC Tlo' Wendeo extra cur' eju»lem domine
Kpoe coram ipsa domina rcjtjna privMi con-
cioi dom. regis cuius ceoor stquitur in hiac
verba, scilicet; ' These are lo will aiid require
' jou to receive into jour ciiartie and custody,
'Ibe person of John Brocket, kiii^ijt, and liim
' u> retain in ufe keeping under your cIibi^
' uatU joD shall bave furtber order for bis in-
Msrgemenl; nbose commitoieotbein^ for some
' special matter coDceming tike service of our
' sovereign lord the king, you may not fail to
'regaid this warrant occordiiiglj. From the
' lm)!'i paUce at Whitehall, the last of Mirch,
' Uoy Esq; fuit causa ditentionis pred. ,
JoliBDois in prirJioa pred. qui committitur |
Msrr. &c et posEca tnditui iu ball' piout paaj
Ter. Micb. anno 13 Jac. Hegis, Kot. 119.
Mila Reyner per Aquilam Wykea cuitod-
piiaone de le Gotehouie, virtute brevis dom.
regis de Habeas Corpus ad aubjiciend, Die. co-
ram domino rege duet, cum causa vii, quod
ante advent, brevii pred. icilt. 10 Julti anno
dom. 1013. pred. Milo Reyner commissus fuit
prisons pred' et hue usq; detent, virtute ivarr'
cujusdem fact, et direct, per Georgium archi-
?nicopuin Capt. Henr. com, Northnmpton.
ho. com. Sufrolk, Willielm, dom. Knollei,
Ed ward iim dom. Wool on, et Ed>vardum dom.
Slanhope, cujus warrniiti tenor sequitur in
hac verba ; ' To Aqiiila Wjkes, keeper
' of ihe Gatehouse in Westminstrr, or 111*
' deputy : Whereus it is thought meet tbat
' aiilt'b Rejaer and Richard Beckwith be te-
' SI r:iintHl of tbeir liberty, and committed to the
' prison of the Gatehouse; These shall be to
'will and require you, lo receive the persons
' of Reyner and Beckwith into joor charge and
' keeping, until you simll huve further order
' from us in that behalf, for which this shall ba
' your sufficient narrant, dated at- WhiteliaQ,
< tbe 10th of Jul;, 1613.' Et lisc esc causa
dctentionis sue io prisoiKv pred. qui conimittitui
Marr* £cc, et postea isto codeoi ter' tradiiur in
bftir prout pMet, &o.
Ter. Hill, 5 H. 7, et per cont. ejusdem Hot. 18.
Hic'us Kverard nuper de Colchester in com.
Rnei clcricus, et Itobertus Wight nuper de
Nonvlco smith, per Ilobenum Wi|luu|;hbi«
tail. dom. de Brooke, senescltell' hijspitii diim.
regis, et Jnbaniien TurberviUe mil' iHarr' boa-
pitii pred. virtute Me. de Habeas Corpus ad
sectam ipsim regis pro qaibuidani prodiiioni-
buB, et felon' unde indicto com. Esses indiciat
sfflN as inde direct, coram domino r^e duct,
cum causa, viy. quod iidem Kicnrdns Kverar't
M Rohertns Wight comrplsg. fiier' custud. Marr.
pred. per mandal. dom.'regis, qui (
Ter, Hill. 8 II. T,et per cont. qusdem Rot.l4.
Roger Cherrie nuper dc NovaWinds'ir la
com' pred. yeoinun, alias diet. Rn^erm Sceat-
ries nuper de endem in eoilem oem' yeoin. per
.Tiiban. Baker, inHJorem villEi doui. regis do
Nova Wiiidiior in com. pred. virtute brevis
dom. regis de llnbcn^ Corpus ad sect, ipsiut
regis pro quibusdnm feloniis et trsn^gr. unde ia
com. Midd. iiidictatua est sibi inde direct, co-
ram doniioo regc duct, cum causa, vii. quod
idem Rnger' coii<mlisus fuit guol. duifi. re^l
infra villa pred. per mnndat. dom. regis qui
r Mar
&.C.
Ter. Hill. 0 H. 7, et per cone, ejusdem Rot. 14,
Cbtistoph.iruK Fturtun nuper de Rochetier ia
com' Cuutii hackneyman, per Kohertum Wil-
loui^hbie dom- Brooke, mil* ernesdiair hnspitii
dom. regis, et Johanneni Digbia mil' Marr.
cur. Uarr. hospitii pred. per loandaiaiii don.
regis. Et live est cau» et udd aln, q«L con-
nuttitur Uarr. &c,'
119] STATE TMAI^, 3 Cham.es I. ]fHS.—ProceedmgiinParlua)eniTdatiagto [liO
Ter. Pas. «nno 19 H. T, el per cont. rjusdem
Roc. 83.
Georfius Ureewicke de Loadnn, merwr, per
Oiiverum Wood locutn tenen. ^risone dam. re-
gis de le Fleet, viicuie brevis dom. regis de
consen'and. diem, &c. ei inde direct, coram
rege duct, cum causa, viz. quad tdim Gcorgius,
' 13 Mail, annu 19, regis commissus fuit prisone
de le fleet, per mandntum ipsius dim. regis
salvo cuatodieud. sub pena 40/. qui committilur
Mart. tic.
Ter. Trin. aono 8 H, 8, per cont. ejusdem
Hot. 33.
Edwardut Page noper de -London, gent, ^er
Georgium com. Snlopix senescball. hospitii
dom. regis et Henricum Shnmbumc Marr. cur.
Mar. luMpitJi pred. virtute brevis dom. regis de
Habeas Corpus, ad sect, ipsius re°is Bit con-
aervand. dleoi, &c. eis indo direct, et coram
rege duct, cum cajsa, viz. quad idem Edivardus
captus et detentiis in prisana regis Marr. pred.
per maodatum dom, regis ibidem salvo custo-
diend. &c. qui committitur Marr. bospitii docn.
regiv
Ter. Micb. anna 8 Jac. et per coni. guidem
Hot. 99.
Tho. Cesar per Ttio. Vavasour mil' Mar.
boipitii dom. regis et Mnn*. ejusdem liospilii
dom. regis, virtule breris domini regis de Ha-
beai Corpus ad subjicieud. &c. ei inde direct,
et coram rege spud Westiuiiist. ituci. cum
causD, viz. quod ante adventum brevis pred.
sell. 18 Julii anno regni dicti doni. reKis nunc
Anglii, &c. 7. Tho Ctesar, io brevi fuit pred.
DoaiioBt, captusapud Wiiilehnll in com' Middl.
per speciale maiidatum dom. regis ac per eun-
dem regem ndtuiic et ibidem commiss. fuit
prison. Marr. ibidem salvo custodiend, quous^;
&c. Et ea fuit causn cnptionis et deteiitionis
^usdem Tho. Cziar, qui commitlitur prisana
Marr. predi
Ter. Sancti Micb. 8 Jac. Regis.
Nisi pred. seneschal!, et Marr, bospitii dom.
regis iuiiicieiiter reiurn' bre. de Habeis Corpus,
Tho. Cesar die Mercur. per quinden. Saiict,
Marliui defeodens eiunerabitur.
Ter. liill. IS Jac. Rot. 153.
Jacoba* Denaislres, Edwardns Emerson,
Geoigius Brookcshall et W. ^ephens, per
Tho, Vavasour mil' Marr. Marr. hospitii regis
viilute bre. dom, regis de Habeas Corpus ad
Mibjiciend. inc. ci inde direct, coram domino
r^e Bpud Westminst. duct, cum causn, viz,
quod ante Hdvemuni brevis pred. scilt, 99 Ja-
nuar. auuo regis Jacobi Anglis, Sic. IS, et
Scot. 4, pred. Jacobna Deinaistres, Edwardus
Emerson, Georeius Braokesball, et W, Ste-
phen* in brevi huic schedul' annex, nominal,
commiss. fber' gaol' Marr. hospitii dom. regit,
pro causis ipsum regem et servic' sniim langen.
<t concemen. Et hac est cnusa caplionis
pred. Jacobi, Edwardi, Georgii et Willielii
poMM ituncilHUi remitUCur pr*rtt. Mlrr. ho»-
Ter. Hill. 19 Jac. Rf^
Samuel Saltonstall miles per Johannem Wil-
kiason arm' guard, de le Fleet, virtute hrecis
dom. regis de Habeas Corpus ad subjiciend,
&c. ei inde direct, et coram domino rege ipnd
Westminst. dnct. cum cause, vii, quod pred.
Samuel commiss. liiil prisoiw pred, 11 Manii.
1608, per warrant, a duminis de privaio conci-
lia dom. regis et quod detentut tiiil etiam idem
Samuel in prisona )ired. virtute cuJDsdem ordi-
I cur. Can' dom, regit fact, cujus ordini*
r pBtet per rot, record, istius termini ad
quem diem pred. Samuel remittitur prison*
pred, Et secundus dies pros, ler' datus est
guardian, prieoue pred. aa emendand. remm.
sutim sufficien, Bup«' pred. bre. de Hibeu
Carpus, el quod (nncinlulerit hicin cor* corpus
pred. Samuel Saltonstalt mil'. Ad quem qui-
dem diem prefat. guardian, prisons pred. saper
pred. bre, de Habeas Corpus retom. quod
pred. Samuel commissus fuit prisonz pred, 11
die Mariii, 1608, per warrant, a dom. de pi-
vac' concil. dicti dom. regis apod Wbitdiall
tunc seden. et quod poslea 11 die Febr. 16II^
commiss. fijit eitra cur. Cane, dom. regis apod
WestminsL prt> contemptu suo eidem cnr.
illat. Et quod detent, fiut eiiom idem Samusl
io prisona pred, per mandat. dom. cancellar'
Augiise super quo pred. Samuel iterum remitli-
tur prisons pred. et ulterius die^ dat, est pre-
tat, guardian, nd emendand. retom, suum inper
Habeas Corpus ver, defend, prout stare voluit
uaq; diem Jovis prux' Mens. Pasch. Et tunc
nd habend, corpus, &c. Ad quaov diem pre-
Ut, guardian, intuht corpus bic in cur' et re-
turn* super Habeas Corpus quod pied. Samuel
commiM. fiiit prisone pred. 11 die Martii,
1608, rirtiite cujusdem wHmrnti a dominis de
privato f^ncir dom. regis tunc seden. apud
Wliitehall, el quod ciiam idem Sam. commiss.
fuit prisontB 11 Febr. anno r^it Jac. 8, pa
cur. Cane. dam. regis apud WtstminsL tunc
eiisten, pro quadain contempt, per eMidem
Samuel eidem cur. ill^. et perpeirat. proiiide
salvo custodiend. qui remittitur priionc pred-
Samuel Saltenstall miles per JohaDnem Wil-
kinson guardian, prisons de le Fleet, virtute
brevis dom. regis de Habeas Corpus ad subji-
ciend. et recipiend, &c. ei inde direct, et corain
domino rege apud Westrabst, duct, cum ciiusa,
viz, quod pred, Samuel Salconstail commissus
fjiit nrisonii pred. 19 die Martii anno regis
JaxKD, Anglie, &c, seito, virtute cujusdsm
warrant, a domiois de privat. concilia dom.
regis tnnc seden. apud Whiiehnll cnmrniuus
tiiit etiam idem Samuel Salutnitall niles P"-
sonn pred. IS die Febr, anno ]G10, et anno
r^. Jac. Angliie, &c. 8, per cnnsiderat. cur.
Caneell' dicti dom. regis apud Wealminst. pro
contmipt, eidem cur. sdtunc per pred. Samuel
itiat. ibidem proi lid. salvo custodiend, Et lieC
sunt cauas captionis et delentionis pred. Ssm.
Saltonstall mil. in prisona; pred, ciyus taowi
121] STAra TRIALS, 3 Chailej I. 162S.— the Liberty qf the Su^ect. (IM
nqdoiil diem et tocnni infra conleDt. paral.
bMO prouc mihi precipicur.
TntConts^tkeRu:atiOs not frialtfl, which
were mid by nV K^ard littUloa.
bierRcconl. Domini RMiaCaroli in Thesaur.
Rccept. Scacorii toi sub cuitodia Tbesaurar.
ct Cunerar. iludeiu remanent, viz. Pi. coram
ipso Domi^io Hrge, et Concilia suo, ad Pai^
.liameotam suum ^st Pasch. apud Londoa
in Maner' Arch-F.piscopi Ebor*, anao Regni
Domini Regis Ed. S. SI. Inter alia sic cod-
dnelur at lequitur. Rot. 3. indono.
Stephanui Rabaz Ticecom^ Leic. et Wan*.
tsnun ipso rtomina rege et ejus concilio arena-
M M u ntioacni poutus ite hoc quod cum J.
B. E. H. & W. H. nuper baUiT- iptiui rice-
ccmitii |)er dom. regein fuisunt assign' ad
jidIm damiai regis deliberand, eidem ric'
qooidam W. P. per quendam appdlaiorem
UK adieDtam eorum jnaticiarioram ibidem ap-
fdtat et capt. vivente ipso appellitore usque
diem driiberalionij coram eis tact, demiss, per
pleiium coiTtra tbrmam itaiati, 8tc. Et etiam
^ndam R. de C. qui de morte hominis judi-
cata) fuit, et per eundem vicecomit' capiat,
itan R. line ferris coram ciwieni julliciaV' ad
Mi be ratio nem prad'produxit contra consuetu-
liiiMm regni, et similiter quendam Walterum
ilimD Walccri le Persone qui per pneceptum
NtDttii Warwici captas fait, dimisit per pletiatn
coDlra Tocem et preceptum domini regis ; cum
idem dnmiaui rex per literas sun? sub privato
Hfillo ma cidem vicecomit. precipice quod nulli
pa preceptum pred. cam. Warwici cept. ali-
ijoiDt graUam vel favorem &c. 8:c. Et super
Wprefat. J. B. qui p'resens est, et qui fuit pri-
BiBs justiciar, pred premisi. recordatur et pred.
ncecunci dicit quoad pred. W. P. ipse nun-
qoun a tempore captionis ipsios W. per pr*d.
•ppelLuurem demiss. luit per plciiom aliquam
ulaailvent, pred. justiciar. Imodicitquodper
dimid. anni ante edventnm eorum justiciar,
taptot fuiL Et quoad pred. R. bene cogorra-
titquod ipse dimiait cum per plenam, et boc
bene fic«re potuit mCione ac authoritale officii
*a, eo quod captas fuit pro qundaqn aimplici
lnns|[reasione, ct non vn aliqoa fetnnia, pro
qsa rrptqtiari non potoit. £t quoad S. viz. W.
nliam PeraoDe bene cognoscit quod ipse captus
fliil|iei preceptum preo. com. Wanvici et quod
dnusit com per pleiiam. Sed dicit quod buc
fcot ad ro^atuffi quorundam de btniDitio el
nria dian. regis, qoi eum specialiterinde rD|[>-
•mat pta- literas auBs. Et super boc idem vice-
Ma. quMivit per dooi. regem qois eum ronavit,
tt literas niaa ei direiit, et ubi literK ilia sunt,
tta. qoqd Walterni de Languin earn per literas
>ai9 inde ragavit, ted dicit quod litere ills sunt
ii partihus luia Leic. Et super hoc idem vice-
emiM profert bre. djm. itps de privato sigillo
idem nc. direct, ifuod testatur qaod dommus
m cidem vie. precipit, qaod omnes illos iraas,
contn pacem et de quibus comes Warrtici ei
•ore ftcit, caperet, et salvo custodir. absque
■iitpairMiaeiihcictnla. Et qniaprcd.jujti-
ciat' eipresse recordat. quod ipii et tocii itii per
bonam ettcg^em tnquisiilianem de militibus et
aliis coiumunibua carain eis fact, inveaernnt
quod pred. W. de Petling dimiuus fuit per ple-
viam per magnum icinpus note odvenium eo-
rundein jo&tic. usq; adventum eorundem et per
vir. pred. Et etiam quia pred. vie. cognoscit
quod pred. R. ilimiMus fliit per pleviom per ip<
sum vie. el hoc die. quod bene facere potuit, eo
quod captus fuit ^ro levi tran stress ion. et per
record, ejusdein justiciar, compert. e^t qaod
captus fait pro morte hominis quod est contrar.
diet. pred. vicecoiit. et umiliter quod idem vice-
corn. cogDorit, quod recepit literaui doin. Tfpa
per qaam Xfx ei precepit, quod uullam gratiam
fecerit illis qui capt. fucr. per precepL pred-
com. et idsm vicecomea contra preceptum illad -
diuiisit pred. Williclmurn filiura Walteri per
pleviam <fu captus Hiit per preceptum pred.
comitjs prout ioem vicecomes fatetur. Et sic
tam ratione ipsius lran«gr. quain alianim predi
incidit in penam ttat. coos, est quod pred.
vicecomes cnmqiitiatDr prisome juxia formam
statu ti, kc. .
Ei Rot. farliamenti de anno 35 Regis Ed. 3,
Numero 9.
Primerement que le Grand Cbartre, et le
Chartre de Forest, et lea autres statuts fait ei»
son tempi et de ses pn^eiiitnrs per profiu de
jui, et de la commenaliy soient bien et ferment
gardes, et mise en due execution sauns diittu*-
bance mftttre on arrest fiiire le centre per spe-
cial mandement, ou en autre manere. Nustre
senior le rov pw assent prelates, duket,
comites, barons, et la commenaltie ad ordeine
et estabili que les dils chartrrs et atatuts soient
tenui et miae en eiecutian seloa le dit Petitioo,
Stat. 36 Ed. 3. Numb. 99.
Tten, conuuc il soit contenui en le Grnad
Chartre et aulres statuu que duI home sera
prise ne imprison per special mandenient sauni
mdiclment, ou autre proccs a feire per le lej
et soient foits ad estre, et U'icore est que ple-
BUres gents sont efnpescliea prise, et impnion
samis indictemcnt ol autre proces fait per Ic
ley sur eui, cibien del cliose fait hors de le
furciC le roj, come per autre cause que piese •
uostre dit sr. command, et deliv. ceux que sont
ami prise per tiel special mandement contre
le forme de chsrtres et statuta arant dits.
Item, pieat on roy et si nul de sent greine
vingne, tt fait te plamt et droit serra fait a luy.
Pariiament. anno 43 Ed. 3. Numero 12.
Item, pur ceo que plusoura de vosire come
■out amerce et di^lurhes per faulx accuior*
qucux loot lour accusemcnts plus pur loor
veonesDces et siugulers profits que pur le profit
de roj ou deson ueuple.
U&ire
;n.d«
le conceil roy per brief cu .
roy mh grmide pain encouutre la ley, Plese a
nostre sr, le roy et son conceil pur ilroit gou-
vernmcnt de son peuple orrieigu que 'sj deiire
ascuQ accusors purpose fucun mniire pur profit
dn roy qut cde matire Boit maoder a set juftieM
13S] STATE TRUI& SCuaussI. ia2S.—Pr<xeediii^mParliameMrekiptgio [lU
del' im banke ou del' autrs, ou d'awites dent
«nquere «c tennioere selonqua la le;, et >i le
touclielaonsour uu putieeic sasont a U tome
ley, et qiie null home soit la'n a rcaponilere sana
preaeDlmEOt deut justicet, ou choiede record,
ou per due praces et bciete original, mIod Toii-
cieut ley de la lerre, et si rieo desire euovuot
■oil raital' eocaatrc,H>ic voideen le;, et teiui
pur error. I'ur ceo que cetU Article eu Ar-
ticle de le Craude Chnrtre le roy Toet que ceo
•oil fail cotoe la Petition demands.
Ex Kot, ciaus. de anao Hegni Regis, Edw. 1.
primo, Membrano 1.
'nkCMiiRs de Clere de Beckwith captus et
detent, tn prisoaa de Northainptan pro trana-
gressiane fureK. habet liter*) flagera de Clif-
ford, justiciar' lbr«9t. citra Trent, quod pbnatur
■ ball. Dat. apud Stinct. Martk. Hngn.
Xiondun 30 die Octobr.
MecnbraoD T. *
Sicpbanos de Lindley capt, et detent, in pri-
sona.pro irantgrei. per i[euni fact, in forest
regis de Lindley habet liieras regis GaUrido de
Ncvill, jusdcinr. ultra Treut. quod p<MiBtur per
Membrano B.
Tlio. -Spademrin capt. et detent, in pHsona
de 0x011. pro morte Willielmi Winne unde
rectal, est, habet litenu regis vicec. Oiod, quod
ponalur per ball.
M^mbrBno 9.
Williclmus de Deane, Matheus Crust, Roger
de Bedell, W. Halfrench, RobeniK Wyai,
Aleiaader Ilareing, Harry de Shome, Nicolas
de .Suodilande.Turgesiu) de Hertfield, Uobertiu
de Pule, ct Hicardus Galiot, capti et detent, in
prisona de Cant, pro morte Qall'ridi de Cottilfer
UDdu appellati sunt, liabenc literas rcfjii vie'
Kbd. quod ponanlur per ball'. Det, 33 Mailii.
Glaus, aono 3 Ed. I. Membr. 13.
Rex Rugero de CliSord, juiticiar. forest, cilrn
Treut. mandamui vobis quod si Robeitus Un-
win, capt. et detent, in prisona nostra de Ayles-
bury pro trauiEres. forest, nosir. invenerit vobis
VI probos et Tegales homioes de ball, vestra
qui manuciapiant eum habere coram jusLidar.
itosU'. ad placita forest, cum in partes, &c. nil
stand. ind« reccaC. tunc apud Sabertum ei se-
cundum nssisum forest. Fuer. repleg. perdictos
duodecim, interim traditur in ball, sicui pred.
est et babeUit nomina illorum 19 honuBum.
£l hoc bre. f(c. Dat. 97 Fcbruar.
Clans, anno 3 Ed. 1. Num. 14.
Unwynusde Boycot, GalfridusdeWickeram,
ei Hugo de Stone, detent, in priaona re^s de
Aylesbury pro transgr. venationii habuiC bre.
direct. Rogero de Clifford justiciar, forest, quod
M secundimi assis, forests eruat repleg. usque
Nuojero IS.
Gullbert Conrny de Keddinjcton, et Hugo )e
Taylor tie Reddunion capL tt dcteU. in pii-
sona sancti Edmuudi pro morte Eiimundi Bunt-
ing unde rectati sunt hibuerint lilenii r^is.
vie' Suff. quod ponantur per ball.
Ctaus. anno 3 Ed. 1. Num. 11.
Galfrirlns de Hairton caplut et detentus in
prisona regis Ebor' pro morte AdeP Ckrke,
unde rectatus est babet literas regis vie' Ebor.
quod ponalur pec ball. Dat. apud Wettmiut.
Numero SO.
Eobertus Belbarbe captus et detentus in pri.
soiia de Newgate pro morte Tbomti Pollard,
unde rectalus est halieC literas i^gis vie. Midd.
quod ponalur per ball. Dat. 38 Februar.
Claus. num. 4 Ed. L Uembi. S.
Mandatum est Rado da Sandwioo quod siW.
da Patiare, & Jo. Iiliu4 ^ui^ Walterus Ifooiev
Walterus Conven, lien. Path, et W. Cadecan^
capt. at detent, in prisuoa t^s de S. firionoU
pro transgi. for. unde reiHali sunt, inyemrioC
sibi 13 probos et legates hamiilf s do ball, sua,
viz. quilibet eorum 13 qui eos manucep' habere
coram justiciar, regis ad placita IbrasL cum iit
partes illas venerint ad Hand, inde rcctat. tunc
ipsas Willielm. Jobaniiem, Waltnrum, Walt»-
'rum, Heurieum, et Willielm. pred. 13 si secun-
dum assisa. fuer. repleg. tradantur in ball' nl:
pred, est, et habeaiit ibi oomina illorun 18 li»-.
minum et hoc bre. Test. Rege apud ball' loouin,
r^is 30 die Augusti.
Clous, anno 4 Ed. 1. Memb. 10.
HenricuB Blius Rogeri de Kenn de Cotters-
brooke capt. et detent, in prisona nostra Nor-
tbamptao pro morte Simonis de Charrettell,
uoile appeilatus est, habet literas regis vie*
Northampton qund ponatur per ballium.
Claus. anno 5 Ed. 1, Memb. 1.
Mandatum est Galfrid. de Neril justiciar.
forest, ultr, Trent, quod S. Walterus de la
Greene captui et detenius in prisona de Noli-
Etngham pro transgr. for' invenerit sibi 19 pro-
bos et legales homines qni turn luanueapiant,
&c. od Etand' inde rectar. secundum nssi's. for'
regis tunc ibidem Walter, pred. 19 traditor in
ballium sicut pred. est. Dal. 16 Not.
Membrano 3.
' Tbomnsde Upwdl et Juliana uiorejus Capt..
et deCeot. in prisona de Wynbateibam pr<»
morte Stepbani Soulbel, unde rscCaL suut, nn-
beiH Ulei^ vie' Nnrff. quod potkontur per baU
Uam. Dat. npud Rothclm 2il ilie Septwnbi-
Claus. anno 6 Ed. L num. 9.
Bitlierua Pestlecaptui et rietentai fiiit in pri-
sona r«gis de Norwio, pro morte Julinnn quon-
dam uior* sue, unde rcotaiui est et habet lite-
ral vie' NoriT. quod ponatur per ball' Teste-
Rege apud WesDniiist leNovcmb.
Membraoo 4.
Mandatum eKvic'NotuniEbamqnodsiTIio,
de Cudart rectaC. de tranwr. forest, quod fe-
ciMe dicebatur iu forest, de Sberwntxl, iiivene-
ril sibi sex probas et Icgales hoounei de ballivK
sua qui eu<D ^anucap^ haber* Gacaa)' wgiB mI
laaiMhriim regis nd stand, rect coram tege cum
rex tndc cum eo loqui Tohicric, tunc pred.
Tbo. prrd. Sdx homioib. inidac in ballimn
jnta manucapt. tupntdict. Dat. 15. die Dc-
STATB TRIALS, 3 Cukklm L 1638.— fV Lfficrty qftke StAjtct. [ISU
ric' Norff. quod ponaior per bull'. Teste regn
ipud Sbeene 39 Jar.
NoRiero 18.
Johnnofi Frere optus et detciit. in giole
regis Oxon. pro moite Adn de Eficlotgh uuHc
rectat, est hibet lit«n» regia vie' Devua. qaud
MUar per bait'. TeaCc apud Westminst. 6
lecembr.
Membrauo 4.
Tbo. BiirraU capuu at detent, in prisona
tt^ Eion. pro inocle Galfrid. Geffiird aade
rectan. MI twbet literas don. r^it vie' Devon.
*|uu<I poDBtur per ball'.
CIhus. anno 1 Ed. 3. Membi. 1.
Jobannn Brjiin de Rolliuwriih ciipt. el de-
(mt. in piiMxia revis Oxod. pro morte Johan-
na de Suttou, uode rectat. est habet literal
recis vie. Oian. quod ponalur per ball, usque
jiTlnl. asiis. si en occaaione, &c. Teste Rege
apnd Bristol, IB Junii.
MembraooS.
W. Spore Capdl. capt. et detent, in prisonA
wtga Oion. pro moite JahanniB Spore unde in-
dictoius est, ec habet literas regis vie' Devon,
qoMl poDatur per ballioio usque ad proi. OHts.
■I eft oocBsioite, &c. Teate liege apud Windsor
S8 die Mail.
Nuraero 10.
Gilberius Faitchlld cnpt. et detent, in gaole
regis DoTctiESter pro morie Henrici de L«ngtoii,
undo iodictat. est babet literal quod ponatur
per ballium usqne ad prioi' ai«iss. Tesw Itege
apnd Westminst. 38. Febniai'.
aaos. mnno 2 Ed. S, Hemlir. 1.
WiDielmus Sandie He Cobtmin capt. et de-
tent, in prisona regis Cant, pro morte Johonnts
deSpriak, JobaiinisErniDnade DuiibeHie, unde
rtctatui est habet litem regis vie' Kane' quod
ponalnr per ball' usque ad primnm nssi*. si ea
oecasiane, &c. Teste Rtge apud Ceitre. 39
Radolph. Corjna capt, et detentus in ^le
regis de Lincotne pro morte Willielnll filn Sj-
monis Porter uode rectat. est et habet litem re-
gis vie" Lineoine quod ponatur per ball' usque
•d primam assb. si ea occaaione, &c. Teste
Bege apud Sbeene 3 diei Junii.
Membraoo T.
Jobanne* de Oitlierd'capt' et detent, in pri-
noB i«gis Ebor' pro morte Mathei Sunpaon de
Ebor* DBde Daetatoa «st habet bterai Kfpt vie'
Eboi' quod ponatur per ball* usque ad priio'
assis. Datapufl LaogeleSOdieAfriUa.
Clans, 3 Ed. 3. Membr. 13.
Adam de fepper captus et detent in gaole
s^is Ebor' pro morte. Henrici le S;mer' de
Eastrick tttuie roctatus est habet literal regis
vie' Ebor' quod p«Miat' per ball' usque ad pri-
nain aMii. Teste Hw« apod WeaimiDSC. T die
Febr.
N'omero 14.
Maijareta uiior WiHielmi Calbet capta et
Ittcoca in gaole reeisNorwici firo morte Agoetis
Glus Willielmi Calbot, et Matilda sororis ^u>
dea Agnetis, onda tectata est babet litam regis
Clous, anno 4. Ed. 3, Meinbr. 7.
RobertU! Sherere cape, et detent, in gaole
regis de Colcestr. pro roorte Roberii le Moigne,
,unde rectat. est habet litcras regis vie' Easet
quod pooalur per ball* usque ad priai' assis.
Dat. 33 die Mail.
NumcHi 8.
W. filius Roberti le Fihbere de Shirborne
capt. et detent, in gnole regis Ebor' pro iBorie
Roberti le Modus de Norton, unde i '
Ckus. anno 4 Ed. 9, Numero 33,
Ttiomas Ellis de Stanford capt, et detent, in
priscinn regis Liucilue pro motte Miehaelis 6\a
willielmi Oe Fodering, unde rectal, est habet li-
teras regis vie. Lincolne quod ponatur per ball'
usque fd prim, assis. Teste i^e apud noram
Westmonast. 8 die Septembr.
^ EdwuidCokb took up the Argainent, as Ry
theretioiuil partoftbeI«w,Bwl began with
this IimODUCTIOK.*
Your lordships have heard seven acts of par-
liament in point, and tbirty-one Precedents sum-
marily collected, and with great nndersianding
delivcrad ; which I have perused, ond ondei^
, stand them nU ihoro-jghlj^, and that there was
not one of ihem againn the Resolution of the
house of commons. Twelve of ibe Precedeuti
are in ttrminit lermiaantihii, a whole Jury of
Precedents, and all iti point ; and to my under-
standing, they admit of no ansvier : but I am
persuaded io my conscience, |hat a number of
ihem was never shewed nt tlie King's-bencb, be-
■ '• "Hie Lord Piesitjent, who reported the
Conference to the house, b^un thus: TheCon-
ferenee upon Monday last with the lower liouie,
was about the Liberty of the Sutgect; to set
this forth, they employed four Speakers : the
fim was sir Dudley Diggs, a man of a voluble
and eloqneat speecti, his part whs ibe introduc-
lioD ; the second was Mr, Littleton, r grave and
learned Inwver ; whose part was. to represent
the Resolution of the house, and their grounds
whereupon they went; tte third was Mr.Sei-
den, a great nntiquaTy, and a pregnant man, his
part was4o sbcw the law,'and the precedents in
point; the fourth was th? lord Coke, ihnt fa-
mous reporter of the law, whose part was to
shew the reason of all ihnt the others had said,
and all that which was said was but an aiGrm-
-ance of the common law." From a MS. be>
longing to the late Peter le Neve, esq. ; aitd
writren at that time, wherein iheConfErencc ■
reined,
197] STATE TEIIALS, 3 Charles I. Ifi28.
cajMC I know out of wlMwe quiver two of than
came, and that thn; were not known befure, t
am much traniporteri with joy, because of ibe
hopes to proceed with goud succesq in this
weiahtj bnsinm,yoi>r iurdships t>eing so full of
juttice, and Cba very theme and subject doth
Jiromise success, which wni, ' Corpus cuin causs,'
tiie freedom of tin EDjjliahman, not lo t>t im-
prisoned n-itbout cause tbewn; which is my part
to shew, and the rettsan and the cause whif it
Aould be so. And Iduubt not but we Malign
oo happily ; and, my lurds, it would be uimea-
Buiable to he pruhx and copiuus, because, 'quod
' intempestiun injiicuiiduui.' I wou'til 8) eak
here aiittle <o some points which are not so
clear and obvious, for otherwise ' peispicua veni
' ucin sunt prjhandn,' and to [ildgold were idle
and lUperfluout; therefore shall briefly clenr Id
your lordships tome doubts madeof tlie Statute
«f WeatminUer, which says. Sheriffs and otl>eni
. maj Dot replevy men in prison Ibr four causes;
1. For death of a man.
S. Commandment of the king.
3. Absolute command from ilie Juslicei.
4, For matters of the forest.
I was oncea Judge of the KiiigVbench, and
did wander how the Judges of these limes thus
interpret ibe Statute. Tlie Statute only shews
what Sheriffs can only do, by woy of repltvip;
the SheriIBi Court is a petty and base court, and
not Qf record, where theSheriff is not the Judie,
but the Jurors, thai is, John a Noke, and John
a Stiles, William Koe, and John Doe, and such
worthiei ot these. Aeain, the Statute saith
there, he cannot be replevied if he be taken for
the death ofu man; and do marvel, whoever
thought it; for the Scripture snith, ' Sianeuis
' nulTo modo expinri potest nisi sanguine.' But
if he cannot be tliere replevied, at the KingV
liench he mny, it is there done every day. Mr.
SberilT, you should replevy a man in such a case,
trgo, not hail him, mv lords the Judges, (nan
tequUur): What not' Judges biiil? Whatnot
the King'S'bench, the highest Court of Record
of ordinary jurisdiclioc f For the King's-bench
that addition proves the
the Teste of the King's-bench is ' coram dom.
' rege,' without any addition, but that of the
Chancery, ' coram dom. rege in CBQcellnria,'
want of time, for I am much drlighled with
ihete things. What, may not tlie Judges med-
dle with any thing in the Forest? If that were
*o, I would never dwell in a forest, to be wholly
nnder the iiirisdiction of the wardens aod re-
garderi. These glosses and interpretations
are very strange to me, and others vfho have
been Judges. My lords, all those Arguments
offeied unto your lordships in this last confi^-
tence, areof^adoublenature. 1. Actsof Par-
liament. 3. Judicial Precedents. For the
first, 1 hold it a proper argimient fur your lord-
(bips, because you, rny lords temporal, and vou,
ip; .lords spiritual, gavt your assent unto iQosc
■ProcetdagsmPartiaiHaUfdatingto [13S
acta of parliament; and therefore if these can-
not persuade i|du, notliiiig can. For the stc md,
which are judjciut precedents, it is ' Argumen-
' tum ah authorituce,' EUid ' Aiguoteutunt ab
' BUlhoritate ralet affirmaiiife:' that is,,tcoD'
ceive, though it be no good argument to say ne-
gatively, tlie Judges have given no upinii^ti in
the point, er|v, that is not taw; yet affirma-
tively iCconctudes well; the Judged have deariy
delivered their opinions in the point, erge, it ii
good law ; which I fortily witli a strong niiom,
' Nenunem oportet sapientorunt esse Icgibus,'
as long a9 these laws stand unrepenUd. Now,
theiie two arguments being so well pressed to
J 'our lordships by my colleagues, I tliink your
urdshlps may wonder wliat my part may be; it
isshort, hut sweet; it is Ibe reason of il those
laws and precedents, and reason must needs be
welcome to all men ; for all nlen are not capa-
ble of tile uuderscandiiig of the law, but every
man ig capable of reason. And those reasons
I offer to your lordships, iu alhrmaiice of the
aocient laws and precedraits made liir the h>
berty of the subject, against iuipiisonment nilb-
out cause eipreased, and shall ibaw theni in
order and method, to confirm the same,
. 2. A minori ad miijiu.
3. From the Remedies provided.
4. From the eitent and univcrsalitj of th«
i. From the infinitenesi of the time.
6. AJine.
The tirst general reason is, i re ipu, even
&om tho nature of imprisonment, ' ex viscrri-
bus CBuszj' for. I will speak notliing tmt uif
idtm, be it close or other imprisonment: and
this Bigument is threefold, beca)ise an impri-
soned man upon will and pleasure is,
1. A Bondman.
3. Worse than a Bondman.
3. Not BO much M a man.; for ' moituDa
' homo nan est homo,' a prisoner b a dead
1. No man can be imprisoned upon will and
pleasure of any, but he (hat is a Bondman aod
Villein, for that imprisonment and bondage arc
' propria quarto modo' to villeins.* Now
' propria quarto modo,' and the species, are
convertible ; whosoever is a Bondman, mav -
be imprisoned upon will and pleasure, antl
whosoever m^ be imprisoned upon will and
pleasure is a Bondman.
3. If a Freeoiat) of England might be impri-
soned at the will and pleasure of the kii^ or
hii commandment, tlien were they in worse
case ihaii Bondmen or Villeins; &r Ihe lord of
a villein cannot command another to imprison
his villein without cause, as of disobedience, or
refiising to serve, as it is agreed in the Year-
books. And here he said, that no mati should
reprehend any thing that he snid out of tha
Books or Records: ho said, he woidd prove a
freeman imprisonable upon command or plea-
sure, without cause eipressed, (o be ebsolntelj
• See tlie Writ DeNalivohabendo.
,Goo;;lc
129)
SPATE TRIALS, 3 Charles I. im6.—th Libcriy qfthe Subjtct.
[ISO
in irarae cnse than a frllein ; and if he did not
make Ihii pLiin, he desired ifaeir lordships not
(o bdierc hi™ in niiy thing else : and then
pTodnceii two Book-CBses, 7 E. 3, fol. SO, in
the new print, 348 old print. ' A Prior had
' commanded nne to imprison liis Villein, the
' JudjEei we™ readj to bail him till tlie Prior
' e*Te \,'a reason, that he refused to he bailiff
' of bis mnnor ; and that sntisficil the Judges.
■ »d Ca^e, 33 Ed. 3, tiile Tresp. 953. in Fonj
IS of n
-ho c
■ mnnded one to take and detain hii rillein,
' but demanded his cause ; he gives i[, becBuse
' be refused, being thereunto required, to drive
' hu cat[le.' ■ Ergo, Freemen imprisoned, with-
■ leins, that minthave a cause slieivii iheni why
' clieir are imprisoned.'
' 3. A Freeman imprisoned nithout cause,
' is 9o te from being; a Bondtnan, ihnt he is
< ant so much B9 a mnn, boi is indeed a dead
* fDBD, and so no man : imprisonment is ac-
' couDtrd in law n civil denth, ' perdit domum,
■ foniiliam, vicinos, pntrinm,' and is to live
* amtnigst wretched aod wicked men, malefac-
' ton, and the like.' And that death and im-
prisonment was the same, he proved by an ar-
Honirnt at rffetlit, because they both pitjdoce
the like imtnediate effects ; he quoted a Book
(or Uii*: if a man be ihrenlenid to be killed,
be may avoid a Feoflinent of Lands, Gifts of
Goods, &c. 3g H. 1, 65, &c. so it i« if he be
threatened to be imprisoned; the one is an
cctaal, the other Is a civil deaths And this is
the first genera) argument, drawn d re ipia,
ftom the Netai^ of Imprisonment, Co which
* res ipsa consilium dedit.'
Tbe second general Season be took also
froiQ his Books ; for he said he bad no law, but
nhat by great pairvs nod industry he ieamt at
his book ; for at ten years of see, he had no
mon: law than oiher men of FikG age : and
this second Reason is, 5 minori ad majut: ; he
takes it trom Bractoii, fol. 105, ' Minima pcena
■ corporalis, est major qualib£t pecuniaria.'
Bnt the kihg himflelf cannot impose a Fine
opon any man, but it must be done judicially by
his Jud^, ' per justiciaries in curia, non per
' rcisetn in camera ;' and so it hath been re-
. *^ved by nil 'the Judges of England: Ije
quoted 3 R. 9, fol. 11.
Tbe third general Reason is taken Irom the
ntnuberaud ditetsiiy of Remedies, which the
lair* give against tmprisnnnftnt, vix.
- Brest de hoiaine replegiando.
De odio et alia.
De HaUai Corjitis.
An Appeal of Impniomacnt.
Srevede Jaaavr.aptioni.
Two of these are antiquated, but the Writ
' de odio et atia' is revived, for that was given
hy the Statute of Magna Cfiarta, e.^ 36, end
Iherefnre though it were repealed by the Sta-
tute of 98 £. 3, c. 9, yet it is revived again by
the Statute 4^ E. 8, c. 1, by which it is pro-
tided, that all Statutes made against Ua^*
VOL. III.
Charta are void. Now the law would never
have given so many Remedies, if the Freeman
uf Englanii might hace been imprisoned at free
will and pleasure.
The fourth general Reason is from the Ex-
tent and Universality of the pretended Power
to imprison : fur it stionld extend nut only to
thecommimsof this realm, and their posterities,
bot to the nobles of the land, and their pro-
genies, to the bishops and clergy of the realm, ,
nud their successors. And he gave a causa
why the commons came to their lordships,
' Commune pericutum commune requirit hui-
ilium,' Nay, it reachelh to all persons, of whiit
condition, or sei, c:r age soever ; to all judges
and officers, whose atiepdance is necessary,
^c. without exception ; and therefore an im-
prisonment of Buch an extent, without reason.
The fifth general Reason is drawn from the
Indeliniteiiess of Time; the pretended power
being limited to no time, it may be perpetual
' ' ig li& ; and this is very hard : ' ' ~
old t
allotie'd for his coming fortfi, is a fiard
case, aa any man would think that had been so
u^ied. And here he held it an unreasonable
thing, that a mim had a remedv Tor his horse or
cattie, if detained, and none for his body thus
iudelinilely impriioned; for a prison without
a prefixed time, is a kind of hell.
The sixth and last Argument is ifine ; anrt
' sapiens incipit k fine,' and he wished he had
he^u there alio 1 and this argument lie made
threefdid.
Ahkonetto. This being less honoorable.
Abvlili. ■ Tbis-bein^ less profitable.
A tuto. This impnsonnient by will and
pleasure, being very dan-
{erous for t)ie king and
iogdom.
1, Ab honesto. It would be no honour to a
king or kingdom, to be a king of bondmen or
slaves ; the end of this would he both iedecu*
et demtium, both to king and kingdoni, that ia
former times hath been so renowned.
S. Ab ulili. It would be against (he prolit
of ibe king and kingdom, for the execution of
those laws before remembered, Magna Charta,
5 E. 3, 95 E. 3, 38 E. 3, whereby the king wa«
inhibited to imprison upon pleasure : you see
(quoth he) that this was velui gttrrtta, an old
question, anc^now brought in again, after seven
iicts of parliament: I say, the execution of all
these laws are adjudged in pariiament to be
for the common profit of (he king and people ;
(and he quoted the Roll) this pretended power
being against the profit of the king, can be no
part of his prerogative. — lie was pleased to
call this a binding reason, and to say, that the
wit of man could not answer it ; indeed the
great men kept this Roll from being printed,
but that it was equivalent in force to the
printed Rolls.
3. A IteasoD i iaio. It is dangerous to tha
king for two respects ; 1. of loai ; 8. of dec
131] STTATE TKIALS, S Chables I. -[eas.—ProceeduigiiaParliaiiKnlrdatttisto [1S3
fuur Bouk-cwel aad Authorities, ill in ihe
puint; Baying, tlitt if tlie lenmed couawt o
the oUier siile could produce but one again:
trojing ihe endeavoun of men. First, If h« .
be committed withnuc the expressicm of the
cBu&e, ttiouj^ lie escape, albeit in trutb it were
for Irea'soD or felonj, yet tbia eacnjie is neither
felrjnji nor (reason ; but if the cauie be ex-
pn.'ssed fur suspicion of treason or felony, then
lilt: escape, though it be ianuceot, i» treason
i/r ^laoy. [The Act, which is in Laliii, is,
' nisi causa pro qua captus, et impiisunat. fult
' tulejudicium requirnt, si de ilia pro legem et
' consuetudinem terrse tuisset convictut.^ lie
quoted u cniise in print like a reaM>n .of the
law, not like ' reniitiitur' at the rising of tlie
court ; for there the prisoner ' iroditur in
' balliuQi auod brere ri^is nan fuit sulficiens
' cuusa;* Ihe- king's command. lie quoted
iiiiother fiimfius cause; the comnoos in par-
liament, incensed aguiust the duke of Suffolk,
desire he should be committed : the lords end
all the Jud-^, whereof those great worthies,
Prescot and Fortescue, were two, delivered s
flat opinion, that he ought not to be comuiilted
without an especial cunse. He que-itioneri also
the name and etjmolocy of the writ in question,
' Corpus cum causa C ego, the cause must !«
brought beiiire the judge, else how cnn he take
notice hereof f
Lastly, he pressed a place in ihe Gospel,
Acts 93. last ver>e, ivhere Festus conceives it
an absurd and unreasonable thin^, to send a
prisoner to a Itoman emperor, and not lo wiite
along with him theCauseolledged against him ;
send therefore no man a pritoner without bis
Causes along with him, hacfac ct vices. And
that was tiie first reason, A tuto, that it was
not sate forthe king, in regard of loss, to cnai-
mit nteo without a caotc.
Tlie second Season is, that such -commit-
Dients will destroy the endeavours of all men.
Who will endeavour to employ himself in any
profession, either oF war, merchaiidixe, or of
any liberal knowledge, if he be but a lenniit
at will of his liberty ? For no tenant at will
will support or impiore any tbiug, because he
bath no certain estate ; Ergo, lo make men
tenants M will of flieir librnies destroys all
industry and endouvours whatsoever. And so
Kuchfer these six principal Ueaions : lakeu,
S. A miitori ad maju$.
. 3, A rcmedUt.
4. From the Eilent and Universality.
5. From the Infioitenessof the Time.
0. AM-
i Honour. *
Profit.
Security.
Industry.
These were his Beasons.
Here he made another Protestation, That if
• Remedy had been eiven in ih); Case, tliey
would not Save meddled therewitli by no
means; but now that remedy being not ob-
tained In ibe King's-bench, without looking
back upon any thing that hath been done or
omitted, tliey desire some provision fur the fu-
luie only. And here be tosk oceauon to add
the Liberties, so patund pertiuenl, oh! how
they C(iuld hiig and cull it ! 16 lien. 6. tit.
UdoHtlrance defait 83, 6y the n hole Court, tb»
king in bis presence uannot conimaod a nuD
to he arrested, biit nn action of false imprison-
meut lieth against bim that arresteth : If not
Uie kiug in hii royal presence, then, none other*
can do it. ■ Non sic itur ad ostfn.' 1 Hen. 7,
4. llus»ey reports the Opinion of Mai-khamy
C. Justice 10 Ed. 4, that he crjuld not imprison
by word uf mouth; and the reason, because
ihe party hath no Remedy ; for tlie law leaves
every man a remedy of causeless imprisoimien^
lie added, tliut Markhain was a woitliy Judge,
ihou):h he fell into adversities at last by Uie
lord Kivers's means. Fortescue, chap. 6. ' Prtk-
' prio ore iiuUus regum usus est,' to imprisoD
any limn, Uc. 4 Lhi. Times bleated aud re-
nowned for justice and religion, in Plowdcn,
^35, the Common Law tiath so udoieasuted ,
tlie kin(;'s prerogative, .as he cannot prejudice
any man in his inheriuoce; and the greatest
iiiberitnnce a man hath, is the Liberty of hii
Persou, for all others nre accessary to iL For
thus he quoted (he oniior Cicero, ' AJujor ba-
' quaui a pajeotibus.'
And these nre the Autlioritica he cited ia
Now he propounded and answered two 01^
jections: first, in point oF Stoic; secondly^ in
ttie course held by the tlousc of Commouf.
May not the Privy Council commit, without
cause ehcwcd, in no matter of state- where se-
crecy is required? Would not tliis be au hin-
drance to his majesty's service *
It cttn be no prejudice to the king by reason
of matter of State, for the cause must be of
liiglier or lower nature. If it be for suspicion
of treason, misprision of treason, or felony, it
may he by general words coAiched ; if it be
for any other thing af smaller uBiur«, M Con-
tempt, nnd the like, tlie particular cause must
be shewed, and no ' individuum veguni,' or
uiicert-nui ciiuse to be udinitted.
Agaiu, if the law- he so clear as you make it,
why ueeds the Declai utioo aud Remonstrance
in parliainent \
tlie Subject hath in this case sued For Ue-
meiJy in Kiiig's-bench by Habeas Corpus, and
FoHnd none; theruFore it is necessary to he
cleared in parliament.
And here ended -bis Discourse. And then
he made a Recapitulation of all that bad becji
offered unto tlieir lordships, tliat generally tlieir
lordshiijs had been advised by the most taithfol
counsellors tbal can be; dead men, these can-
not be daunted by fear, oor mblnl by affec-
tion, reward, or hope of preferment, and ibere-
forc your lordships might safely believe them :
particularly their lordships had three several
kinds of Proofs.
1. Acts oF Parliament, judicial Precedents,
good Beasoni. First, Tou have hod many an-
!33] STATE TRIALS, 3 Charles I.
cwni Beta of-pnTlintneiitjn the point, bearded
]d^> Cliana; ihat ii, seven acti of jwrlia-
nent, wliicli indeed nre thirtj'-seren, AlagiiH
Ctnnn bein* coiitinne't thirty times, for su
tCwD fasTe ihr kings of Englaud given tlieir
mfd usent theretu.
8. Judicial l^cedeniiof pravc and reverend
Judges, In Irrmijii) ierminanliliai, tliaC luiig
•ince departed the world, and cliey. were mnny
ig numiler. Precedents being twelve, find the
Jadges fuur of :l Bench, made four times twelve,
lod that i) forty- eight Judges.
9. You have, oi be termed then), vividar
ihipt, that ibej of the House of CoTnmons hare,
Dpon great Kady nnd serious cnnsideration,
made ■ great manifeataticm unnniinouiily, nulla
QMfradieeiiK, concerning tfaii gieat Liberty of
the Sabject, and hare vindicated and recQvared
the boiij of this fDQdamciilnl Liberty, both of
Uxir lord^ips and tbcmselves, from shadows,
• vhidi sofhetnnes of the day are long, sometimes
■liott,and sometimes loni; Bgain; and therefore
. *i must not be gaided by sbfidows : and they
bare transmitted to their lordships, not capita
rrrMi, Heads or Briefs, tor these compendia
ttt dupendia ; but the Records at large, in
UndnU ttnai»ai\libuf. And so he concluded,'
lliu their lordships tve involved in the same
duger, and therefore 'excongruoetcondigno,'
diCT desired * Conference, to thp end tlietr
Wthjps might make I he like Declaration as
ihej had done ; ' Commune pericolum requint
' coonnuneauiilium;' nAd thereupon take such
fiuther course at loaj secure th«r lordships
and them, and all ibar posteritv, in enjoyiog
>f ttieir ancient, undoubted, ana fiindamental
Liberties.
IlMSubMaiiceof theOiUECTJOHSiDadeby Mr.
Attomey'Ceneral (Sir Robert Heaib] be-
San » Conuuittee of both Houses, to the
AiGDUEHi that was made by the liouse of
CoaiaiODi, at the first Conference ' with the
Arrift the firat Conference, which wm de-
nred by the L^rds, and had by a Committee of
bMh HoDws in the Fainted Chnmber, touching
the Heasoni, Laws, Acu of Parliament, and
Precedei|t« concerning the Liberty of tlie Per-
)0D of (Very Freeman; Mr. Atlorney-Genernl
Uiag beard before ibe Committee of both
Uonies, *g it wai anented to by th^ -house of
oiiiunoas, that he aigbt be, belbre they went
■p la the Conference ; after some preamble
■>Mle, wherein he declined the answering all
Reaiom of Lnw, and Acts of Parlbment,
CUM ont^ to ^e Prei^dents used in the Argu-
Beoc before delivered ; and so endeavoured to
*caken the strength of them, that had been
brought in behalf of the subjects, and to shew
il>t same other were directly cnnirnry to the
l>*i comprehended in the resolutions of the
kme of commons, toaclunK the bailins of uri-
iclunKthe bailing of pri-
MMn, returned upon the Writ of Habeas Cor-
|v tg be cooiDUtted by tha ipacial coDuuuid
1028.— f&! Liberlfi <^lhe Saiject. [134
of the king, or the council, without any cause
shewed, fur which by law they ought tii be
coromitted. Aud the course which nas tnten
(it plensed the Committee of bolb ~liouseb lo
allow of j was, that Mr. Attorney should jnake
bis Objections to every particumr Precedent,
nnd that the Gentlemen appointed, ami trusted
herein by the house of ci>mmons, by scveralre-
plies thould satis^ the lords touching the Ob-
jections mode by him, Hiiaiost, or vjxm etery
[inrticular,a3the order of tlie Precede Dti iliculd
ead ihem. He b^an with the first twelve
Precedents ihnt we?e used by the House of
Commons at [ho Conference desired by them,
10 prove that prisoner* returned to stand so
committed, were delivered itpon hail by the
Court of King's-Bench.
The fint was that of Bildeaton's Case, in the
18 lEdw. 3, Rot. 33.
To this he ob'iected ; first, thnt in the reiom
of him into the Court, it did not i^ipeur, tliat
this Bildeston was coiiiraiited by tlie kiug's
command; and secondly, thui in ihe Record
it did appear also that he had been comoiitteil
for suspicion of counlei/eiting the great seal,
and so by consequence was bailable by tjielaw,
in regard there appeared a cause wliy he was
committed : in which case it wag granted by
him (as indeed it was plain and agreed of all
hands) that the prisoner is bailable, thouth
committed by command of the king. Aud he
said that this part of the Record, by which it
appeared he had been cnnmiitted for stispicioD
of Treason, was not ob»erved to the lords in
the Argument before used ; and be shewed
also to the lords, fliat there were three several
kinds of Records, by which the full truth lof
every award, or bailing upon nn Habeas Cor-
pus IS known. Firat, the Rem einbra ace-Roll,
wherein the award is p^ven ; secondly, the File
of the Writ and the Return ; and thirdly, ihs
Scrtiet-Rnll or Scruetjinium, wherein the bail
is entered, and that only t^e Ilemembrmnce-
RdII of this case was to be found : and that if
the other two of it were eitant, he doubted
iiot but that it would appear also, that upon
the return iuelf the cause nf the commitment
had been expressed. And so he concluded,
that this proved not for the Rosotntion'of the
house of^ commons, touching the mnller of
bail, where n prisoner wna committed by tho
king's speciol coininnnd without cause shewed.
To these Objections the r»ply was. First,
that it was plain that Bildeston was committed
by the ting's express command. For so tho
very words of the Writ are to the Constable of
the Tower, ' quod eum teneri et custodiri fa-
' ciss," fltc. than which noiliiiiR can more fully
eipress ■ commitment by the king'i cimmand.
Secondly, however it be 'true, that in the laiter"
part of tlie Record il doth appear, that Bil-
deston had been committed for suspicion of
Treason, yet if the times of the proceeding, ex-
pressed ill the Record, were nbserved, it would
he plain that tlie objection was of nu force ;
for this one ground, both in this case and in all
the rett, ii in&llible, ind never to be doubted
135] STATE TRIALS, 3 Chablks L \e2S.—ProceedmgtinPaTluaneHtnlaiinsie [18^
of in the Taw, That Justices of ever; coart ad-
ju((|(e of ihe force and slieiigth of a return out
of ihe body of itself only, and ai tlierein it np-
iieon. Now in Easter term in tlie IQ Ed. 3,
lie waa retumed and brought before ibeiu, as
committed only by the Writ ; wlierein no cuue
h eipreMed, and the IJeutiDiuit nnd the Con-
Kiable of tlie lower, ilint brougbt biin into tin
court. Bays, Tliat be bud no other warrant to
detain huu ' nisi breve predictum,' > wherein
tlieie was no mantidn of way Cause ; and the
Court tbereupuii adjudged, that ' breve pre-
* diciuni,' or that special command, was not
sulHcient cause to detain hiia in prison, and
thereupon be is by judgment of toe court in
Easter Term let to Mainprise. But that part
of the Record wherein it nppcars, that be bad
iudeed betn cotumitted for suspicion of Trea-
Bon, is of Triniiy Term tiillou'iog, when the
kiii^ after the lettii^ of bim to Mainprise, tent
to ibe Judges that they should discharge his
.Mainprise, because no man prosecuted bim.
And at that time it apptars (but not before)
tliut lie liiid been in for suspicion of Treason ;
so that he was returned to stand committed by
the liing's suecint command only, without
cause sbenen, in Easter Term, aud then by
jutlgment of the court let to Mainprise, (which
to this purpose is but tbu same with Bail,
tho'ugh otherwise it diller). And in the Term
following upon another occasion the court
knew, tiiat he had been cnmoiilteil for suspicion
of Treason, w'hich has no relaiion at all to the
ietiini of hint to Mainprise, nor to the judg-
ment of (be court tbeu given ; when they did
llul, nor could possibly know any cause for
nhicb the king bad commitied him. And it
Was said, iu behalf of the house of commons,
thnt they had not indeed in their Argument
e^ipressly used this latter part of the Record of
Bildestun's Case, because it being only of Tri-
nity Terra fallowing, could not concern tbe
reason of an award given by the court in Easter
Term next before; vet notwiltutanding that
they had most faitlifnily, at the time of their
Argument, delivered in to the lords, as indeed
they had, a perfect copy at large of the whole
Record of this cote ; as they had done also of
all other precedents whatsoever cited by them ;
insomuch as in irutli there was not one prece-
dent of Uecont on either side, the copy where-
of ihej had not delivered io likewise, nor did
Mr. Attorney mention any one betides those
that were so delivered in by them. And as
toucliiug those three kinds of Records, (he Re-
metnbrance-Uoll, the Return and File of (be
'Wrii,an'dScruetsi it was answered by the Geu-
tlemen employed by tbehouseof commons, tbu
it WHS true, timt the Scruet and the Return of
this cnsf of Bildeston was not to be found ;
but that did nut lessen the weight of tbe pre-
cedent, because alwayt in the award or judg-
ment drawn up In the Remembrance-RoU, the
'caote (wiiatsoever it he) when any is shewed,
upon the return is always expressed, as it ap-
E^ars dearly by the constant entries of the
io^VBencn cuuit. S« that if any cause had'
appeared unto the coart, it most have appeared
plainly in that part of the Roll which belangi
to Easter Term, wherein the judginent was
given : but tbe tetum of the coniniitment by
(he king's eomuiand wiltuiut cause shewed,
and the Judgment of the court, that tbe pri-
sons liaa to be. Jet to mainprise, appears there-
in only. And so, untwitlislaudiog tiny ol^eo
tion made by Mr. Attorney, the cause wis
mninlained to be a clear proof, among many
others, touching thnt Resolution of the boiMC
To tbe second of these tweUe, which is
Parker's Case, iu the 32 H. 8. Rot 37, his ob-
jections were two; 1, that it is true, i bat he
rettiroed to be committed ' per maiHtatuu
by one itiibert Peck gentleman; and that in
rcgarct tb,it tbe command came no othcfnise,
tbe return was held insuBcieoi, and that there-
fore he was bailed. 3. That it appears also in
the Record that he was committed ' pro sul-
' picione felonin ac per mandatum domini
' regis :' SO that in regard that (he eipressisn
of the cause of his copHnitment, lu&piciau rf
felouy, precetie* tbe command of the king,
therefore it must be intended that 'the court
took the cause why tbe Ving committtd him to
be of less ifiotnent than felony, and ibercfore
bailed him. For be objected, iliat even the
bouse of commons itbeinselves, in somean^
men(s used by them, touching the interpreta-
tion of tbe Statute of Westminster ibe &rst,
cap. 15, about this point, had aSirmed, tbst in
enumeration of particulars, those of grcaieM
nature were fint mentioned, and that it wis
supposed, that floch as followed were usually o(
But the reply was to tbe first Objection,
That the addiuon of tbe certifying of the king's
command by Robert Peck, altered not the esse:
1, because the sheriffs in their return, took
notice of the command as wlwt they were as-
sured of: nnd howsoever it came to them, it
was of equal force, as if it bad been mention-
ed without reference to Peck. 3, As divets
Patents pau tbe great seal by writ of priry-
sesl, and' are subscribed ' per breve de private
' sigillo ;' BO divers ' per ipsum r^eoi,' are so
sutecribed ; and oftentimes in the Roll of
formertimes, to the words ' per ipsnm regem,'
B.' So that the
maud related or certified by su
this purpose of like nature. 3, In the late
great csSe of Habeas Corpus, whien; ib« rettun
of tbe commitment was ' per speciale mando-
' turn domini regis uiihi siguincatum per do-
' minntdeprivatoconcilio;' tbe tt>urt of King's-
Beach did a^pree, that it was the same, and of
like force as if ■ mibi sigoificatam, &c., had not
followed, and that ibose words were vdtd. Ao-
carding wbereunto, here also ■ per roaMUtom
' dom. rqis nundatum per Robert Peck,' had
been wholly omitted and void likewise. And
in truth in that iaie case, this Caw of PHket
187] ^ATE TRTAl^, 3 Chabus L 162.S.-wA« Uberty (fikt Su^i.
wu cited bath it the bar and bench j aedtt
tin bench it wu intcrprelcd by the Judges nu
atliernise, ihau if it had been ouiy ' per inaii-
■ datum domini ic^is' in place of it : but the
objectJoD there iras made at another liind, u
n«s delivered in ttie Rnl Argument, made out
of Precedeut) in behalf uf ihe linuse of com-
mons. Therefore to the tecand objectiou,
toutJiingthe contM ofenumerntiouuf (be cause*
in the Betuni, it waa laid, that howsoever hi
tome acts of ]iariiameut, sad ebenhere in the
Mtieipi) eipresiiuni used in Che law, cblagi uf
greater nature preceded, and tlm leu follow ;
Tet in this case, the cooirarj was moit plaia,
fur in the Hetum it appcart, ihat there were
three caoieifordetainiiig tbeprisoners i Surety
of ihe peace, dupidoo of felony, and ihe king^
command: and auitty of the peace ia £nt
meniioned, which ii plainly leu than felouj.
And therefore it ii plain, if any tbrce of ail-
ment be taken fiom itus enumeraiioa, that the
cotUTBry to that which Mr. AttonlBy interred it
to be coochided : that is, ibaC at felony is a
(icaur cause than surety of the peace, so the
Mattel (thereupon tbe king's command was
fnMmded, ma uraatrr than felony. Bat in
truth this kind of argument holds neither way
here, awl whatioeTer the cause were, why the
king comiiHitcd bim, it waa impossible for the
court lo konw it : and it also might b« of very
high moment in matter of state, and yet of &r
less nature than felony. All which shews, that
this precedent bath its fall force alwi according
M it was first used in argumeot by the house (^
To the third of these, which is Binck'* case
ID the 35 U. 8.ilo(. 33, tbe objection was, that
tbe« was a cause eipreiied ' pro luipicioue
' feloni« :' and though ' pm ajiis oauiis illus
' mowaoiibus* were added in the return, yet be-
cause in the course of enumeration, tbe general
name otaiiit coraiog after particulars, iodudes
tbiup of less nature than tbe pnrticuUr doth,
therefore in this case suspicioii of felony being
tjw fint, the other cause* afterwards geserally
mentioned mi|st be intended of lets nature, for
which the pnsoner wat bailable, becoiMe be
aas bailable (nr the grsnter, which was lut-
picii)n of felauy. Hereunto it *as replied, that
ibe arguraeot of enumantion in ihese cote* is
of no ntomait, as it next before shewed :- and
that although it were of auy moment, yet aiia
Kaw«y though test than fpbjity, rni|{lit be of
veiygrcatcoDsequeDce in matter uf state, which
it pieuaded usually upon genn^ returat of
couaaand, without cerise shewed; and it is
most plain, thal^ tbe court oould not possibly
know the TCMona, why tbe prisoner here was
ocxmiiittad, and yet they bailed him, without
loohing fivthtr after any unknown thing under
that title of matter of state, which might as mii
knjt, bqrn in tfiis case at in any other whaCeo-
To tiie fourth of these, which is Orerton's
Cat^ in Pateh. 9. et S. Phil, et Mar. Rot. 5B.
And lo the fifUi, wbicfa is Newport^* C«ie,
PMck. Phil. «t IIAiw. 4 et £ Rot. 46, on^ theae
[ISS
objections were said over again by Ht. Attor-
ney, which are mentioned in the Argument
made oui of tbe PreceJents in behalf of the
house of commons at the first conference : and
iu the same arguoitnt are fully and clearly
saUffied, as they were in like manner now again,
Tu the tilth of these, which was Lawrence's
Case, S Elli. liol. 35, and the seventh, which
is Constable's, Pasch. 9 Eliz. Rot. 08, the sane
objeciions were likewise said over again by Mr.
Attorney, that are mentioned, and are dearly
and fully aaswered in th^ argomenl made at
ihe conference out of precedenu in behalf of
tbe Itouse of commons ; tlie force of the objec-
tion being oiJy, chat it appeared in the margin
of the Roll, chat ihe\«onI Pardon was written :
but it i) plain that (he word there hath no re<
ference at all to (be reason wiiy they were
bailed, nor could it have reference lo the cause
why they were comroitled, in regard the cause
why they were c<HDmilted is ullerl; unknown,
and .»n« not shewed.
1'p the elghtli of these Precedents, which wka
Browning's Case, Pasch. SO Eliz. Rot, 73. it
was said by Mr. Attorney, that he was bailed
by a letter from the Lords of the Council, di-
rected CO the Judges of tbe Court ; but bong
asked for (hat le(ter, or any testimony of it, he
cotthl produce none ac sU ; but said, be thowf bl
the testiiDouy of it wat burnt, among many
other tiling of the Council- table, b1 the burn-
ingof the Baouu eting-Uonsc,
To the 0lh, beiug Harecoort's Case, Pasch.
40 Elu. RuL 69, tbe telf same objection wat
made by him, but no warrant was sbtwed tu
maintain bis Direction.
To the 10th, n-bich is Catetbv't Cate, in so-
cetimc UUl. 43 Eliz. he said, That it was by
' direction of a privy-seal from the queen : and
to that purpoie be shewed the privy-seal of 4S
EJiz. which is at large among the transcripts of
tlie Recordt concerning boils taken is cases,
where the king or the lords awented. But it
was replied, I'hat die piivy-eeal wat made only
for some particular gentlemen mentioned la it,
and ibr none other, as indeed appears in it:
nnd then he said, thai it whs likely that Catrt-
by here bad a privy-teal in this behalf, because-
those other had so : which was all the force of
To the Itth of these, which is Beckwith'*
Case in Hill. 19 Jac. Rot. 153, be said, that .
the lords of the council sent a l^ler to ihe
court of King's-BeQch to bail him. And indeeA
be produced a letter, whicfi could not by any
toeao* be toand what tbe arguments were
made at the Rnt conferencei and lliis letter,
and a copy, of an obscure report made by «
young student (which was brought to onotho-
purpoae, at is hereafter shewed), were (he-
only diings written of any kind that Mr. Attor-
ney produced, beside* the particulars shewed
by tbe bouse of commons at the first conler-
enco. To this it was replied. That tbe latter
wiaa of DO momeni, being only a direction to
the Chief-Justice, and no matter of Record,
nor tay WSJ cooceming tbe rett of tbe Judge* :
139] STATE TRIAU, 3 Chaxle* I. l03S.~Prvaedmp m IWioMnt rtlaAig to [140
■nd besidca, either the prisoner nns bBJlitble
hy the law, or not bailable.; if bailable
bj the law, then ha wa< to be hailed nitb',
out nay such letter ; if not bailable by the Ian,
then puiiily the Judgeii conld not have bailed
• hiiD upon t^e letter, without breach of tbeir
oath, which is, ' That they are Co do juKice ac-
* coi(lin)> to the law, tviihont having respect lo
. ' a"5<^<iDl0lind wbataocTer.' So tliat the letter
in this case, or the like in any other case, it for
point of Uw u> no purpose, nor hath any weight
at all by way of ob)ection agninst what the
Itecord and the Judetnent ofthe court shew us.
Tu the ISth and last of these, which is sir
Thomai Monson's Case in the 14 Jac. Hot.
14T, the same objection ofily was said over hy
him, which was mentioned and clearly answer-
ed in the argument ; and that one ground which
is infaUihle, ' That the judgment upon a return
' is to be made oniy out ofwhat appears in the
' body of the return itself,' was ^ain insisted
upon in this case, as it was alio in most of the
rest. And indeed that alone which is must
dear law. Fully satisfies almost all tind of ob-
jections [hat have been made to nny of these
precedents; which thus rightly understood, are
many ample testiinonie* of the Judgment of
tbe Court of KingVBcnch, touching this i^eat
point, in tbe several ages, and rei<;ns of the se-
veral princes under wMch they fall.
Afler his Objections to the twelve, and tbe
replies and satisfactions given to these objec-
tions, he came next to those wherein tlie as-
sent of ibe king and privy-council appears to
have been upon the eolaigeriient : but he made
not to an}! of these any other kind of ohjeciians
whatsoever, than suco as are mentioned and
clearly answered, as they ware now aoain, in
tbe Argument made at the first Conference.
And for so much as concerns letters of assent
or direction, the snme was here said again by
way of reply to liim, as ia hefhre said touching
the latter in Beckwith's Case.
After theje were dispatched, he came to
ui^e the eight Precedents, which seemed to
make fVir the other side gainst tbe Resolutioa
of tlie house of cnmmons : which eight were
nsed, and copiMoftbem aho were^ven intothe
lords at the arit Conference.
Of these eight, the first four were ur^ed by
him, as being of one kind ; the difierence of
. thtm only being such, that, save only in the
names of prisons and of persons, tbey ar« but
the self- same.
To the fbrce of these fbor be objected thus ;
that Richard Everard, for the pnrpoie, in the
first of them, which is S U. 7, Rot. 18. Roger
Cherry In the second of them, which is 8 H. 7.
Rot. 13, Christ. Burton, in the third of them,
which is 9 H. 7, Rot. 14, and George Unewirl^
in the fourth of them, which is 19 H. 7, Rot.
13, yitte returned into the Kiilg's-Bench upon
several nrits of Habeas Corpus, to have been
committed and detained in the several prisons
whence they tame ' per mandatum domini
' r^ls,' and that upon that Houra they were
•ommitted to ilw manhal of th* King's-Beocb ;
and that however it had been objected against
those precedents, tbat this kiud of commitment
was by the course of that cotirt always done
betbra the baiting of the prisoner, yet, that it
did not appear that they were bailed.
The Reply to this objection was. That by
constant course, of King^s-Bench, whosoever
came in upon Habeas Corpus, or otherwise
upon any writ in that court, cannot be bailed
until he be first cotnmitted to tbe marshal of
that court; and that tbence Itwas, tbat all those
four were committed to the marshal, as appeir«
by the entry, ' Qui committitar Marescallo,
' &c.' which is the usual entry in such a case,
and that the clerks of that court acknowledge
this course and entry to be most constant. So
that ail the inference, that can be made oat of
these four, is, thst fonr prisoners being brought
from four several prisons by Habeas Corpus
into the King's-Bencb, and returned to stand
committed ' pur mandatum domini r^is,' were
to far from being remanded by the law, that in
nil these four cases, tbey were first token fnta
tbe sereraj prisnns, wherein they had been de-
tained, by such a general command (whkh
could nut have been if they had not been «d-
judf>ed in every one of tbe casei to have beoi
bailable by the conrt), and that this commit-
ment of tbtra to the marshal of the KingV
Beach, was tbe first step towards the bailing oT
them, as in all other cases. But that it ap-
pears not, that either tbey ever demanded to
be bailed, or that they were able to find suffi-
cient bail ; and if they did not the one, or could
not do tbe other, it mav follow indeed that
they were not bailed. But this commitment
to the king's-Bencb being the fir«i step to tbr
bailing of Uicm, as by the constant course it ia,
shews most pls^y that they *tte bailable by
the law, winch is tbe only thing in question.
So tbat although these fonr precedents vrere'
ranked among them, that may seem to make
against the Resolution of the house of coimuons,
which was done, both because thejr have tliis
smalt colour in them for the other side, to any
man that is not acquainted with the nature nnil'
reasons of the Entries, and coutsesoftbe court
of Klng's-Bench, and also because all or some
of diem had been used in the late great case
in the KiogVBench, as precedents that made
against the liberty claimed by the subject ; vet,
in truth, all four of them do fully prove iheir
Resolution ; tbat is, the^ plainly shew tliat the
ci>uit of King's-Beoch m every one of ihem
resolved, that the prisonets so committed wer*
bailable, otherwise ihey had been semanded,
and not committed to the marshal of tbtt
KingVBendi. And this was the Answer tn
tbe Objection made by Mr. Attorney upon
those four precedents, being all dF the time of
king Henry the seventh.
To the '6hh of these eight, being Edwonl
Po^'i Case, in T H. 8, RoL 93. Mr. Attorney
objected ihua : He said, that Edward Page was
committed to the Marshalsea of the Housbold,
' per mandatum domini regis ibidem salvo cns-
< todteod, &c' 'Qwaommittitor Alarescall*,
STATE TILIAI2, 3 Charles 1. \0'2i.—tke LAerty tif ike Street.
'&C. Ho^tii domioi regis.' Bj which it np-
peutth, u be said, ihat the oourt renmndcd
bim bwik ta tbe prisoD of the Manbalsea of
tk Houtbold : and he «ud, that wberenu it hnd
bceo objected at the first coDfereact, that lliere
wn lome mistaLing in the entri«; be can-
cured, indeed, that there nas ■ miUBkiiig, but
it WIS that the clerk Lad eiiteied ■ comnuttitur'
Ibr ' rcmittitDr,' and that it ahuuld iiave been
' Qui temitulur MarMctJlo Hospitii domini re-
'pi:' lot wbeoerer tbey remanded the pri-
•oeer, ■ nmittilur' and not ' commiuitilr' thould
be entered. And that miitaking being so rec-
tified and uadentood, he coDceived it iva* a
direct prccedeDt againU the Ketolation of tbe
[US
To ibii it nu umrered b; the Gentlemen
of tbe house of commoiu, That there wu no
doubt, indeed, bnt that a mittake was in [he
tatij bj the clerk, but that the miitaking naa
quite of another Datore. The addition of thoie
■mnli, ' boapitii dom. rt^is,' was tbe mittak-
lag, and tbe entrj bIiouTcI have been, ' ^ui
* commitliLur Mareuollo, &c.' onlv ; that u,
be was comolitud to tbe Marshal of the King's
Bench; and so iodcett the force of this prece-
dent should be but just the Eunc nitb the first
ibur; but tbe icnorance uf the clerk that en-
teted it, knowing oot huw lo distii^uiab be-
tweeo the Uarslial of the Houihuld and tbe
Marshal of the King's Dench, was the cnuse of
iheedditionof tboevrordi, ' hoipitiidoa. regis.'
And to confimi fully this kind of interpreta-
tiao of that precedent, and of tbe mistaking of
it, it was observed h; the Gentlemen of the
UonseofCommoas, that there is in the margin
of the BoUoQ infdhble character that justiiies
■o iDuch. For by tbe ciiune of that court,
wbcnaoever a prisoner is committed to tlie
Marshal of the King's Bench and not remand-
ed, the word Mnracalio is written in the margin
short bj Marr turned up : and tliat is never
wriiten there, hut when tbe meauiog and lenie
oflhe cnir; is, that the prisoner is committed
to tbe ptisan of the same court. Now in this
ease ' Marr' ' in the margin is likewise written :
which moM dearly shews that ibe truth of this
case was, that ihis PaRC ^'■i cotnmitted to the
Manbai of the King's Bench, and nut remand-
ed; whtcb if k had beenf neitiier could the
entiy have been ' commiltitur,' nor should the
margin of the Uoll have had ■ Mart' nriitni
And thus they have answered Mr. Attorney's
nlgeutiona touching ibis precedent, and cod-
duded that now, besides the first ibur of the
eight, tliey had another, and so five to prove
that B prisQDer committed ' per mindutum do-
* mini regis,' generally was bailable by ihe
jndeiiientof the court. Uowcver, it appear!
not in these particulani that they were bailed ;
which perhaps they were not, either because
they prayed it not, ur because they could not !
fiuJ tuOicicnt boil.
The sixth of tliese Precedents, beuig the
caseof ThomiiiCsesai', in tbe 8 Jac. Ke^s Rot. '
M. iil. Attiiruej objected tu it thus : TImI I
CKsar being committed ' per mandatnm do-
' mini i;egi9' to the Marshalsea of the Hous-
bold, was returned upon Habeas Corpus to be
so comniiited, and tberefure detained in prison,
and that the entry is, ' Qui cominittitur pri-
' sons Marescal, prasdict.' by which it appear*
clearly, . iliat ha was remanded lo tbe sam*
prison from whence be came.
To this tbe Gentlemen of the House of Com--
mons gave this answer : 'J'hev said, (hat tbe
ubual entry of a 'remittitur, when it is to.
shew that tlie court by way of judgment, or
award upon a resolution, or debate, remands
tbe prisoner, is, ' remit litur quousque secan-
' dum I^em rieliberatus fuerit :' but when
they advise, or eite way U> tbe keepec of tli«
prison lo unena his return, or the like^ tliera
the entry is only ' remittitur' generally, or
' remittitur prisons predict.' But it was in-
deed affirm^ by Mr. Keeling, a clerk of great
experieDce in that court, thnt the entry of a
' remiitiiui' generally, or ' remittitur pri^ioniB
' pnedictz,' was indifferently used for the same,
as ' remitiiior quousque,' &c. Yet it was ex-
pressly shewed byllic geutlenieuoftbe Uaui>cor
Commons, tliut there vros sometimes n dilfer-
ence, and ihat io h might well be in this case.
Fur in the lait of these eight precedents, which
is Saltonstall's Case, they observed that ' rc-
' mittitur prisonm nrKdicim' is often used ; and
that it is twiceusertonly for a remanding, during
the time that the cnurl gave leave Id tlie War-
den of tlie fleet to amvnd his return ; whicli
shews plainly, that though sometimes ' reinit-
' titur' generally, and ' remittiiur quousque,'
&c. may mean the same, yet sumetimes it doth
nut. And that, in ibis case of Cssar it doih
not menu any oiher, but ordy so much as it
dutb twice in that of Saltonstall's case, was
proved also by a Rule of the court, which was
cited out of the Itule-baok of the court of
King's Bench, by which rule the court expreisty
ordered, that unless the stewinl and mar^al
of the Iloushold did lufficiently return the writ
of Habeas Corpus lor Cnsar, Inat he should lie
discharged, llie words of tbe rule are, 'Nisi
' ptcdicti Senescallus et Marescallus hospitii
'domini regis sufflcientur rctumaverint brere
' de Habeas Corpus, Tho. Cs»«r die Mercurii
' proxirOK post q~uindenam Sancti Martini de
' prisona exonerabitur.' And this was the opi-
nion of the court : which shews that tbe court
was so far ftom remanding him upon tbe return,
that they resolved, that unlets sotne better re-
turn were made, Ibe prisoner should be dis-
chni^d of bis 6rs( imprisonment, though it ap-
peared to them out of the bady of the return .
(upon which they were onlv lo judge), that be
was committed ' per mandatum domini regit'
only. And the rule not only sliews tbe opinion
of the court then to have been agreeable with
the Resolution of the house of commoos, but
also proves that ' Hemittitur;' generally, or
' Remittitur prisonte pnedictie,' doth nut b1<
ways imply a remanding upon judgment or de-
bate. And this answer was given to this of
CiESar't Case, that is tbe titth of [bis number. ,
143] STAl^ TRIAI^, 3 Csahles I. 102S.r—FH>eudi»ig,vtPaTlianiatirtltahigio [144
icieir, tbni donbtleM th«y wouJd hsTc Temanded
liim upon that mlnne; Ibr tlieo t hejr needed not
nt all tn have stood upon the other part of Ibe
return in this case. So ihat out of Lhe Record
itself It Bppeara fully, tliHt tlie ooart conceited
Che return to be insufficient.
So the Gentlemen of Ilie Hoeae of Cnmmons
included, that their had a great number of '
Precedeuti beaiden diyerr acts of parliament,
and Reasons of Common Law, agreeable to
their Reaolution ; and that there was not ona
precedent at all that made against tliem, -but
indeed, thnt almost all ihnt were brought, as
well agaiuM them as for them, if rightlj ander-
ttood, made fully for the mainienaoce of their
Reiolution : and ttiat there wa« not one tnant-
ple or precedent of a RimittitDr in any bind
opon the point hirfonj that of desar's case,
which is before deared with the re«(, and ia
bnl of late time, nnd of no tnomerit againft the
Remluiion of tlie Huuse of Commons.
And thut, Inr m much n» coni-emed the Pre-
cedent* of Record, tbe fiist dny of the Conter-
ence desired by the lords ended.
Tbe KvcHlh is the Ceisc of Jmnea Demetrius.
It iras 19 Jae. Rot. 153. Mr. Attorney ohject-
ed timt this Demetrius and divera others being
, hrewen, were comntitted < perconcilium domini
* regis' to tbe Mnrshnisea of the Ilousliold, and
that Hpoii the commjunent so generally return-
ed, tliey were remanded, and iliat tha entry
was ' immediate remittitur pnefacto mareMxllo
'pnedicti botpitii;' where he observed, that 'im-
iBediatfe'ibews that tbe Judges of that time were
■0 reMlvcd of this question, thn they rcmandqd
them presently, asmen that vtdl knew what tbe
law wa* herein.
Hereunto the Gentlemen of the Hoose of
Commons euve these Answers. 1. Thnt the
Remittitur in tbi) case is but ai the Other in
Ccaar's, and lo proiea nothing against them.
3. Ybat ' immediatfc' being added '
» the anlhority of tbe precedents to be of
DO force in point ^of law; for judgments and
Bwarda given upon delitwmtion only nnd de-
batn are proofs and arguments of weight, and
not any sadden act of the court without
debate or deliberation. And the entry of ' im-
mediate' being propoaed hy Mr. Keeling, it was
confirmed by him, that by lh.it entry it appears
by this course, that the remanding of him was
the lelf-aame day be waa brought, which, as it
vras said by the Gentlemen oT the House of
Communs, might be at the rising of the court,
or upon advisement, and tbe like. And i)iis an-
swer waa given to thi) precedent of the brewers.
The last "of the eight, to which Mr. Attor-
ney objected, is ShI ton stall's Case, in the 13
Jac. rvgis. He vras csmmicted ' per manda-
* tmnduminorum regis de prtralo concilio:' and
being returned by the Warden of the F!-'et to
be so, ' Remittitur prisons pradicti ;' and iu
the 13 Jnc. in the same case there is ' remit-
titur' generally in tbe roll. And these two
make but one case, and are ns one precedent.
To this the Gentlemen ofihe House of Cnm-
roons answered, I'hnt it is true, the Rolls have
such entries of ' remittitur' in them generally,
but thnt proves nSthino, upon tbe reason before
used by them in Cenars case. But also Salton-
atall was committed fui another cause besides
' per maudalum dom. re^s,' a contempt against
an order in the chnncerj, nnd thnt was in the
return alsn. And besides the court, as it np-
Cnrs in the record, gave sei-eral days lo the
•rden of the Fleet !□ amend his return,
which they would not hare done, if they had
conceived it sufficient, for that which is auffici-
To this Mr. Attofoet replied. That they gave
bin) a day to amend his return, in respect^of
that part of it which concerns the order in
Chancery, and nrtt in reiipectof that which was
' per mnndntum dom. re^s.' But the Gentle-
, men of the Hou^e of Commims answereit. That
that appeared not any where, nor inde«d i% it
likely. at all, uor can be reasonably so under-
stood ; because if the other return ' pet
' maodatuut dom, regis' bad beeo aiifficient by
The next day, they desired another Confer-
ence with the House of Comraofti, at which it
pleased tlie Committee of both hnnses to hear
Mr. Aitomry again make wliat Ol^ecUons be
could against other parts of tbe Ai^^ument
formerly dehvered from the House of Com-
mons. He Ilien objected against tbe Acta
of Parliament, and, against the Reasons of
Law, and his objcciions to those pans H'ere
answered, as it appears hy the Ansivers by or-
der given into the House of Commons by the
gentlemen that made' them. (Vide postea.)
He objected also upon the second day neaiost
thesecund kind of Precedents, nhicbareReso-
iutions of Judges in former tunes, and ant of
record, niul brought also some other teadno-
nieaofibe opinionsof Judges in fanner times,
touching this point.
First, for that Resolution of all the Judges of
England in 34 Eliz. mentioned and rend in ths
Arguments at the first Conference, he said.
That it was directly against tlie Keaolution of
tbe Hnuse ofCummons, and observed the wortt*
of it in one place to be, that peraoni ao com-
mitted by the king, or by the council, may not
be delivered by any of the courts, &c. And in
another, that if the cause were expressed, ei-
ther in general or in specially, it was sufficient ;
and he laid that the expressing of a cause in
generality wai to shew the king or the conncil's
command : and to this purpose, he read the
whole words of that Resolution of the Judges.
Then he objected also, thnt in the Rei'Ort of
one Roawell's Caie in [he KiiiK's-bench, in 13
Jac. he found that the opinion of ifae Jud^et
of that oourt (sir Edward Coke bein;; ibm Chief
Judge and one of iheiu) was, that a prisoner
being comtnitted ' per mBudalum dom. re^ia,*
or' privati cuncilii,' without caose shewed, mad
so returned, could not be bailed lircause it
might be matter of state, or ' Arcana imperii,*
for wbicb he stood cominiiud. .And to tbi>
W] STATE 'miALSj SCbavlesI. H}2i.—aeLiia1y0tiu!SulyKt.
[146
(bo he added, ui opinioo be fbnnd in a Journal
ID tbe House of CammDm of 13 Jac. nhecvin
sr Sdimd Coke ipeaking to a Bili prefinTed
forihe eiphmatiao of Uagaa Charca lunching
mprBomticiii, Mid in the aame houM, That
one M tOmmitted could not be inlarecrl b; the
hw, becinse it m^ht be matter ol state for
■hich he mi comnuued. And unongst these
djectioBt of tbe other nature aho, he spake of
lie eoufidencc chat was ibewed in beholt'oF the
Home of Commons : aa'd he $aid) it nas not
canfidencB on eidter part could add anj thing
Is the detenoiaaiion of the question : but if it
codd, tliat ha hadumachreaMiD of conRdence
be wt othtr tide agaicit the Resolalion of the
House of CommODi, groandiog himaelf upou
the fnce of hit olyectioiia, ubicb, ai he coa-
cnTed,had ta veakensd [be aifuiiienM of ihe
House of Conunons.
To thia a replj wu made ; and 6rU it wBi
nd to the lords an the behalf of the Houic of
Comniona, Ttiat noCwithttanding uaj thing ;fet
b^ected, the; were upon dear reason still coa-
fidcnt of tbe truth of their first Reeolutinn,
troanded upon to iOst examination, and deU-
berUion taken b; them. And it was observed
10 tba lords also, that their confidence herein
miof another nature, and or ureaier weight,
than anj confidence that could be eipreued
hj Mr. Attornej, or whomsoeTer else betnij of
In nujestj's counsel leanied.
To vbidi purpose the lords nere desire'd to
tAt into tbmr memories th« difference between
Ac prMent qualities of the Gentlemen that
ifAks in behalf of ihe House of CommoiiE, and
aCtbe King's learned Cnuosel ib their speaking
tfaetc, tiowiocver accidentallji they were boili
BKQ or the same profession ; Ibr the King's
Connsd spake as counsel perpetually retained
bjfre, and if tbe J made glosses or tthnt adrin-
ti{eoiis interpretation soever for their emi
pin, ibej did but what belonged to ttieir place
and qnaticj, as Mr. Attorney had done. But
the Gentlemen that spake in behalf of the
House of Commons, came there, bound on tlie
BBC side by the trast reposed in ibem b; their
eoiDCr; that sent them, and on the other tide
Kighls and Prert^tives of tbe Crown ; so that
*K0 in tbe point of confidence alone, those of
(btm<that speak as maitjed counsel b; perpe-
toal fee, and those that by their place being
Mmitted to Speak, are bound t« utt«r nothing
hut truth, bdih by such a tnist and such an
ouii, were no way to be so compared or coun-
terpoised, as if the one were of no more
weubi dian the other.
Aai then the Objectiont bviiOTe meotioaed
*Re alto answered.
Vta that uf tha Resolution of all ibe Judges
Of England in 34 £lii. it was shewed, that
Vinnly it sgreed nith the Retotulion of the
DMie of Commons : for althnugb inderd it
^ht have been expressed "iih more parspi-
«ntr,y«thewordsoftt,as theyare,solBciently
<bew the meaning of it te b« ao otherwise.
TDL, IK,
To thnt purpose, Tiesides ihe words of tlie whule
frame ol tins Resolution of llie Judt^es, as it i»
in the cupy transcribed out of the L. C. Jiiv
tice Anderson's Book, nrltlen in iiis own hand,
which book Vas here offered to be shewt^d i^
the behalf of the bouse of cotnmnns; iiims ob-
served, that tlie words of the fitsC pRrt of it
shew plainly, that all the Judges of Eugiond
then resolved, that the prisoners spoken of in
the first part of tbeir Resolution were oa\]f
piisonera committed with cauie shewed ; for
they only say they might not be delivered tij
any court without due trial by law, and judg-
ment of acquittal had; ahidi shews plainly
they meant that by trisl and acquittoi they
might be delivered. But it is clear (hat no trial
or acquittal can be had, where there is not
some causa laid to their charge, for which tlu..-
onght to stand committed. Therefore in that
part of tbe Besolution »ucb prisonera are only
meant as are committed with cause shewed,
which also tlie Judges in that Reiotution ex*
pressly thought neceisnry, as appears in tlu:
second part oF their I^esolutiou, wbc-reiu they
have these words : ' If upon tbe return of iheir
' Hnbeap Corpus, the cause of their cuimuit-
' ment be certified to the Jud;;es, as it oujlit to
' be, &c.' By which words they shew plainly,
that every return of a commitment is iii3u&-'
cient that bath not a cause &liewed of it. And
to that which Mr. Altornev said, as if the cause
ncre tnfGciently expresscti in generality, if the
kino's command or the council's were e:(pressed
in it, as ifthat were meant in the resolution for
a sufticient general cause j it whs answered.
That it WHS never heard or in Ian-, that the
power or person that, committed the prisoner
was understood for the ' cauia captiouis' or ,
' cama detentionis,' but only the reason why
that power or person committed the prisoner. .
As also in common speeili, if any man ask m liy
or for what cause a man stunds csmmitted, tiie
nnswer is not, that such a one committed him,
but his oflence br some other cause is under-
stood in the queuioo, and is to he shewed in
the nniwer. But to say that such a one com-
mitted tlw prisoner, is an answer ooly to tbe
question, who committed btin f and not wliy,
or fnr what cause he stands so conimitleil?
Then for that of tlie cnuy of the Report, in
13 Jac. shewed foi th by Air. Attorney, it wai
answered by tbe Gentlemen of tlie House of
Commons, That the report itself which had
been before seen, and perused among many
other things at a committee made by the liouije,
was of sli);ht or no authority, for that it was
taken by one, wbo was at tiiat lime a young
student, and as a reporter in the King's Bench,
and there was not any other report to be found
that Hgreed with it. Secondly, Ahhough tbe
repnrls of younp students, when tiiey take the
words of Judges as tbey f^l from tlicir moutlls
at the Bench, ai^l in the tauie person and form
ley have spoken, may be of good credit ;
ported: but in truth there being three cases at
a time in the EingVSench, one EoswcU'scase,
Hi] STATE TRIALS, SCuAmiMl. i62t.—Pr<KeediiigiiaPaTlumntrdotvigto [!«
ihey
,Aileii'», "lid SftltontlaU's c«ie, every of which
hnil aomclliiiig of Ube nnlure in it, the ttudcnt
^having been presFnc ia the court, mnde Up llie
frame of one report or ote out uf all three in
liU own wortls, and so put ii iniu bis Buolt : to
tiM there is not n worti in the report, but it is
frained accixlinf; to the student's fancy, as it is
written; and nothing it expressed in it, as it
Iciime from tl* mouth of the Judges, otherwise
,'thiiii hi* ftncy directed iiim.
Thirdly, There are in iho report plain fals-
hoodj of matier of fact, which are'io be Bltri-
butcd either to the Judges or lo ihe reporter.
It is most likely by all reason, that they pro-
ceeded I'ruin the Reporter's fault; howsoever,
the^e mHlleni of fnlshund shru sufficiently that
the ciedit of the rest it of li^Jit vulue. Ii is
a:ud in the report, that Ilarecuurt beini: com-
biittrd by the council, was bniled, iii 40 Eliz.
upon a privy-seal or a Utieri'wherena in truth
there is iio bucIi thing. And it is said there,
thitt kiuri of IrlteiB me 6led in the cronn-oftice,
whereas hi tniih therf was not any such kind
of letters filtd there in any case whatsoever.
That Hesoliiiiou ol the Judges in SI £liz. is
mis-cited there, and made in 36 Rliz. And it
j; hail! tbert, that by that Resolution, a prisoner
retiinicd to be cmninitti d by the command of
the kin; , might uot at all be delivered by the
court ; u hereas no sudi thing is couipre bended
in tiiat Resolution.
But ihiit which i* of most moment is, that
howsoever the truth of the report were, yet
the opinion of the Judges be! iii; sudden, and
without any debate had of tbe case, is of linht
■noriieiit: lor, in dithcidt points especially, tl]e
mrst prate and learned men living may on the
suddtn lei i'nII (and lliat nithout any disparage-
ment to them) such opinions as iky may "
mid niighi to change upon fiirtiier inrjuiry,
minntiiin, and full debate had before tbein,
mature deliberntion tal.n by ihem.
plainly in that ol 13 Jac. there is not so much
ns a pretence of any debate at the bar
bench. All that is reiijrted lo bnve been,
' Imported us spoken ol the sudden. And <
»nv men lake such a sudden opinion lo be of
value B|{ain't solemn debates and mntui'e
' berntions since had of tin point? And indeed
this tire.it point, and all circumstances belong,
ina to it, have within this half year, been so
fullv exuiiiined nnd searched into, tliat ii
wefl be affiriiied, that the most learneil
whi't-otitT that hath now considered of it, hath
wiihin that time, or might have, learned i
reason of sutisfactbn in it, than ever before lie
met »iih. Therefore the sudden opinion of
the Judges lo the contrary is of no value here,
which alsri is to be said of thai opinion obvi-
Audy (teliveied in the commons bouse in 18
.Tac. ns Mr. Attorney objected out of the Jour-
nal of the house. But besides, neither was the
Iruih of that report of that Opinion in the
, Joiirnirl any way acknowledged; for it was said
in'lietmlf of tbe house of commons, that theii
Journals were for mHtters of Orders and Reso-
lutiljns of the hoose of such authority, as tliat
their records. But for any parti-
cular man s opinion, noted in any «f them, it
was so far from being of any sutburity with
them, that in truth no particular opinion is at
ah to be entered iu tliem, and that their clerk
offends, whenever he doth to the contrary.
And, to conclude, no such opinion whataoevpf
can be sufficient to weaken the clear law com*
prehended in tliese resolutions of the house of
10 many precedents of record, and the re-
ion of an the judges of England ; and
agjinsC which not vne law, written or unwritten,
not one precedent, not one reason hath beea
brought, [hat makes any thing lo the contrary.
And thus ended the next day of the Confer-
ee desired by the lords, and had by a Com-
mittee of both houses.
Se^eant AsDLET'sAncDMEHT, seconding Mr.
Attorney, in the behalf of his Majesty.
I hope it will be neither offensive nor lediou*
to your lordships, if I said somewhat to second
Mr. Attorney ! nliich I the rather desire, be-
cause yesterday it was taken by the Gentlemen,
aiid argued <>n the bibalf of the Commons,
that tbe cause was as good as gained by iht^m, .
mid yielded by us, iu tbat we acknowledged
the statute uf Alagna Charla, and the oilier
subsequent Stntutts, to be yet in force : for od
tliat they enforced tiiis (general conclusion ;
' That (lierefore DO man could be commilted,
' or imprisoned, but by due process, presenc-
' inent or indictment.' Which we say is »
Mm icfuitur upon such our acknowledgment;
for then it wuuld follow by necessoiT conse*
quence, that no imprisonment could be Justi-
fied but by process uf biw, wiiicll we utterly
deny. For in the cause of tlic Constable cited
by Mr. Attorney, it is most tleiir, that by tbe
ancient law of the land a constable might ii
t^io, without any watraut, arrest, and rcstrtuD
a man lo prevent an affray, or to suppress ii.
And so is ilie authority 38 lien. 8, Brook's Ab-
stract. So may he, after the nlTray, apprehend
and commit to prison the peisnn that liaih
wounded a man thnt is in peril of death, and
that without tvarrant or process ; as it is in 38
E. 3, fol. 6.
Also any man that is no OScer may appre-
hend a felon 'A-ilbout writ, or warrant, or puisue
him as a wolf, and as a commun eneinv lo th«
Commonwealth, ai the Book is 14 Hen. 3,
fol. 16. So miglit any one arrest a night-
walker, because it is for the common profit, as
the reason is given 4 Hen, 7, fol. 7.
In bke manner the Judges in these several
Conrts may commil a man, eitbci for contempt
*or misdemeanor, wiihoul either process or war-
radt, other than ' Take him Sheriff,' or ■ Take
him Marshal, or Warden of tlie Fleet.' And
the adversaries will not deny, but if the king
will aliedge cause, he may commit a man ' per
' mandntum' as the Judges do, wilhout process
OT warmnt. — And various are the ctues tliaC
may be instanced, wherein tbeie may b« a
149J ffTATE TRIALS, 3 Charlei 1.
Iiwfid comniitmeiit without proceii. Wbere-
bbited bj the Ian,
Whicb being jjranled, then the questinn will
tptl^ be made. Whether the King or Council
nsj coniinit to prison ' per lejiem lerra-,' were
onlf that a part of the municipal Ian of this
reilDt, whicb we call the Coouuon-Law ? p'or
ibeiT m also diven Juriadicliotu in this king-
dom, ohicb are also reckoaed the law of ihe
hnd.
As in Cawdr^'s Case in Coke's 5th report,
faL 1. the lirsc ecclesiastical luw is held ihe
tiwofthe land, to punish blasphemies, schisms,
Imciies, simony, incest, and tt>e like, for a gaoil
mson there rendered, nz. That otherwise ihe
kins should not have power to da justice to liis
nhjKts in all cose^, nor to punbli all crimes
wiitiin"hts kingdom.
TIk Admiral's Jurisdiction is also Itx terra,
ordiiD^ done upon the ICB; but if the; ei-
cnd [Iwir jurisdiction, Bprohibitino is awarded
npoD the Statute of RuUui JiierAofflii; bjr which
upears thai the statute is in force, ai we hace
ickDowledged.
The Martial Law likewise, tboDgb not to be
eiercised in times of peace, nhen recourse
. ma; be bad to the binp s courts, yet in times
Df iiirasion, or other tmies of hostility, when
in mnj-royal is in the field, and oHoDces are
eooiiBitted, which require speedy refiinuaCion,
•sdcannotei peel the solemnity of legal Trials j
Cbea sDch imprisonment, execution, ur other
jsstics done by the Uir-martia) is wariantable,
Jbritia then the law of the land, and is jut
putjun; which erer serves for a supply in the
defrct oF the common law, when oniiuary pro-
ceeding cannot be had.
And so it is also in the case of the Law of
dieHerchant, which is mentioned 13 Edw. 4,
bl. 9, lO, where a Merchant-stranger «m
■nongetMn his goods, which he had committed
lo I currier to coovey to Southampton, and
the carrier imbeiited some of the goods: fur
remedy whereof the Hercbant sued before the
crancQ in the Star-Chamber for redress. It is
ifaeie nid thus : Mercbant-stran^r^ have b^
■ke king safe-conduct for coming into this
rahn; therafore ihey shall not be compelled
tn stteud the ordinary trial of the common
la*, bur, for expedition, shall sue before the
kinifs council, or in Chancery, ' de die in diem
' eiilc horft in honm ;' where the cose shall be
dHnmiiied by the Inw of merchants.
lo the like manner it is in the T.an of State ;
"heo tbe necessity of state requires it, tliey do
*nd may proceed to natural equity ; as in those
Mher eases where the law of the land provides
not, there the pmceediiig may be by the law of
natural eqoi^: andlnfinltearetheoccurrrnce:
af Hate, unto which tbe common law eitend:
sot. And if these proceeding of state should
Dotdio be accounted the law of the land, then
■« do fall lata Ihe. same incooveniency men-
^Htdia Cawdry'f oase, that tbe king should
1028.— (/« Liberlyqfthe Sni^rt. [ISO
not be able to dojustice in all cases within hi*
If iheo the kiiignorhiscouDcilmay not com-
mit, it must needs follow, that either llie king
must have no cuuncil of stale, or having such k^
council, tliey must have no power lo nmke or-
ders, or nets of state; or if they may, tljey must
be wiibout means to compel obediunce lo tbo;e
acts ; Biid so we shall bIIhw ibcm jurisdiclion,
but not compel obedience lo those acis : but
not correction, which will be then us fruitless a*
the command. ' Fiustra potentiu qus nuu-
' quam redi^tui in slatutum.' Whereas ihe
very act of Westminster the first, shews
plainly thai the king may commit, and that
his commitment is koful, «r else that act
would never have declared a man W be irre-
pleviable when he is cammiiled by the com-
mnnd of the king, if the law-makcri had con-
ceived that lu's commitment had been unlawful.
And Divine Truth mfbnns us, thut the kiiiga
have their power from pod, the Psaitnist call-
ing ibcm ' the children of ihe Most High;'
which is in a more special manner understood
than of other men ; for all ilie sons of Adam
are by election tliesonsofGoil, and all the toni
of Abraham by recreation, or regeneratinn, lb*
children of the Most High, in respect of the
powerwhichii committed unto them; viholiaili
also furnished them nith uruamenls and armi
tit for ilie exercising of that power, and hatb
given iliem Bcepires,!»ord>, aiid crowns; scep-
tres to institute, and swords to eiecme ians ;
and crnwns as ensigns of that power and di^
nity, with which they are iavtsled. Shall w* ,
then conceive that our king halh so far troni-
mitted the power of hb sword to inferior ma-
gistrates, cliat he hath not reserved so much
supreme power as to commit an offender to
prison? 10 Hen. 6, fol. T, it appeais that ■
steward of a court leet may commit a miin la
prbon, and tlinll not the king, from vhom all
mferior power is deduced, have power to com-
mit > We call him the Fountain of Justice, vet
when these streamy and rivulets, which flow
from that fountnin, cume fresh and full, we
would so far exhaust that fooutain, as ;u leave
ii dry. But they that will admit him so much
power, do require the expression of the Cause ;
I demand whether they will have a general
cause olledBcd, oraspecinlP if general, us they ,
have instances for treason, felony, or for con-
tempt, (for to leave fcncing.and to speak plainly
as they intend it) viz. If loan of money should
be required and refused, tihd thereupon a cono-
miiment ensue, and the cause signified to be Ibr
contempt, ihis being unequal inconvenience
from yielding, die remedy is sought; in [lie next
parliament would he required tiie expression of
the particular cause of the comiuitinent. Then
fit would it be forkingorciiunol iii cases
whether it be monarchical, or of
any other frame, which hate not some secrets ijf
state, not communicable to vulgar undcrscand-
15iJ STATE TRIAXS, 3CaAit(.RsI. l&23.-~PnKeedmgiiaParJiamaaTeiatingio [16%
I will instance hut one ; if a king emplojr an
•mba^sadoi to a Torcign country or stale, with
iD^trunions fyc his nejiociattoD, and he pursue
not Ills inslruciions, whereby ditlionour aiid
damage tnay ensue to the king(lon>, is not this
committjblef And yet the particular of his in-
stfdctiun, and Ihe mnnuer afhij miscairyinK, is
not fit to be declared to his keeper, or by nini
tO'be certified to the Judges, where it is lo be
opened nnd debated in the presence of a j^reat
audience.
I therefore conclude, for offences ngninst the
State, in case of Stnta GsTemnient, the Ling
and his council have Jiiwful power to punish by
imprisonment, without shewing particularcause,
where itmay tend to tbe disclosing of State Go-
vernment. It isnellkDOwnto many thatkuovF
me, ho* much I have laboured in this*law of
the Ruhjects liberty very many years before I
was in the king's service, and had no cause then
to speak, hut to speak tTaninw; yet did I then
maintnin and'publish tlie same opinion which
now I [luve declared cohcerning ibe king's 9|i-
preme power in matters of stale, and therefore
cannot justly be censured to speak at this pre-
sent only to merit of my master. But if I may
freely speak my own understanding, I conceive
it to be a question loo high to be determined by
nny legal direction ; for it must needs be an
hard case of contention, wlien the conijueriir
muit nit down with irreparable losses, ns m this
casr. If the subject prevails, he gains liberty,
but loseth the benefit of that State Govern-
mfnt, by which a nvonnrchy amy soon become
an anarchy [ or if the State prevails, it gains
absolute sovereignty, but loseth subjects : not
their sutQection, for obedience we must yield,
though nothiiig he lefl us but prayers and tenrs,
but yet loseth the best put of them, which is
their affections, whereby sovereignty is estab-
lished, anil the crown firmly fiit on his royal
bead. Between two such eitreroes there is no
way to nwderate, but to find a medium for the
nccon>niod.itinn of tlie difference ; which is uot
fer me to prescribe, but only to move your lord-
abips, to whom I submit.
After Mr. Segeiini's speech ended, my Lord
PrestdenI said thus lo tlie GentlemeQ of the
House of Cominons; ■ That though at this free
* conference, liberlv was given by the Lords to
' the king's counsel to speak what they thought
' fit for bis mojesiy, yd Mr. Seijcant Ashley
' had nu authorily, or dircctioa from than to
' tpcak in lluil manner he had done.' And he
was committed into custody, and afterwards,
being sorry for any hasty expression be m^ht
hare used, wns discharged.
The Objections of the King's Counsel, with
the ANBwins mad« thereunto, at (be two
Confereiices tonebiog the same mailer.
It was agreed by the Aitomey-Qenenl, sir
Robert Uenth, that the seven Sutatas urged
by tlie Ci'inmuiis were in force, and that Miij^na
Chiiitn did extend most properly to the king.
But he said, 1, Thnt some of them arc in ge-
iicrul wurds, and thereiure couolude nothing.
but are to be expounded by the precedents;
nnd olliers that be more particular, are applied
to the sujigesiidiis of subjects, and not to the
king's command 'simply of itself. Hereunto it
was answered. That the Statutes w^re as di-
rect ns could be, which appeareth by the read-
ing of tbein ; and that ihougb some of tbem.
speak of suggestioas of the subjects, yet oihet*
do not : and they tliat do, are at effectual, for
that tltcy are in eijual reason, a, commitment
by the command ot the king, being of as great
force, when itmovetb by a su^estion from a,
subject, as when the king taketh notice of it
bimsalf ; the rnthn: for that kings seldom inter-
meddle wiih matters of this nature, but by in-
formation from some of their people.
2. Mr. Attorney objected, that ■ per legem
' terrx' in Magna Charta, (which is the foun-
dation of ibis question) cannot be understood
for process of the la.w and orl^nal writs ; for
that in all criminal proceedings no original
writ is used at all ; but every constable either
for felony ar breach of the peace, or to prevent
the breach of the peace, may commit without,
process or original writ, and it were hard the
king should not have the power of a constable.
And the statute cited hy the commons, make*
procBEB of the Isiw and wricongiDul, to ba aU
The answer of the Commons to this objco-
tinn was, tbit they do not inicnd original writ*
only by Uw of the land, but all oTber l^al pro-
cess, which comprehends tlie whole proceed-
ings of law upon caute, other than trial by
jury, Judicium parium, unto which it is oppos-
ed.. Thus much ii imported ex vi ttnaiia out
of the word process; tuul hy the true accepta-
tion thereof^ in the statutes that have been
uied by the commons to nm in tain the (tedara-
tion, nod most especially the statutes of 95 Ed.
3, cap. 4, where it appeareth that a man ought
10 be brought in to answer by the course of Uis
law, having former mention of prooeu mad*
by original writ.
AndiQ3BEd. 3,cap. 3,<bythecauneofthe
law' is rendered ' 1^ due process of the law.*
And 36 Ed. S, Hot. Pari, n, SO, the petition of
the commoiis soith, < thht no man ought t» be
imprisoned by ^>ecial command without in-
dictment or other due process lo be made bj
the law,' 37 Ed. 3, cap. 18, calletb the samo
thing ' process of the law ;' and 49 £d. 3, cap.
3, stilelh it ' by di^e process and writ original ;*
where the conjunctive must be taken' for a dis-
junctive, wliicb change is ordinary in an expo-
sition of statutes and deeds, to avoid incoi^re-
□ienceii, to make it stand with the rest ; and
with reason, as it may be collected, ' by the latr
of the land' in Magna Chartn, 'bythecoarte of
the law' in 3S Ed. 3, <bytbe daeprocetsnflaw'
in 98 Ed. 3, ' other due procpss to be made by
Ihe law' in 3G Ed, 3, ' process of the law' io 37
£d. 3, and > by due process and writ original' in
49 Ed. '3, are meaui one and the same thing;
the lutiet of these statutes referring always to
the furmrr, and that all of tfaem injport any.due
and regular froccediog? of law upOQ a caiiw .
US} ^ATB TIOALS-. 3 Crabub L mes.—the Uhrrij cf ^ 5h^.
[IH
«tCT tbui the Trial b^ Jury. And thi» ap-
poKtb 10 Hep. 71, in the caw of the Mir-
iteliea, and 11 Bep. 99, James Ba#g's case,
vIieR JL ii ubdeistood of giving jansdiciion b^.
charter or pre*cription, whicli it tlie erxiund of
■ pnKeedion bj couise of lam. And in Scl-
' dm'iNote* on For[acue> f<>l- 39) tvbeK ic i»
ctpoonded for law-vriuer, which is likewite a.
liial at law by the oath of the panie* di&ring
fiooi tbat bj jurj. And it doth trulj conipr*-
kod Uieie and all other regular proceedin|p
ii U« upoa cauM, nhich give* authority to
Jw dustable to arreit upon coute. Aiid if
thit be not the tme exposiuon of these words
'^ Urbh tCTTs,' the kiug'i cbhbmI were de-
fied to declare their meaniog, which tbej never
g&rcd to do ; and jet certuol; these wolds
o th« 11
iDlf ibi
tnikio of 1 . ,
And thereupon Mr. SerjeBnt Aibln offered-
■aiaterpretaticiD of ifaem. thus : auaely, Tbat
then were diver* laws of tbis reabn, a* the
CoatmOD Lanr, tb« Law of the Chancerr, the
Ecdraiutica] Law, Cbe Law of the Admiralty
or Hiriua Law, the Law of ihe Merchants, the
Uutial Law, and tbe Law of State ; and tbU
tbcK words ' per legem teres,' du etteod to
til these laws.
To this it was answered, That we read of no
Lt" of Slate, and tbat noneof these laws can
be nkeaat there, save the ComBwio Law, which
ii ibe'principsL and general law, and is atwaj*
Bodentood by way of exceUency, when men-
boii is made of tlie law of the land gener^y :
ud that though each of the other Itfws, which-
WC admitted into this kiDgdoin by cuitoin or
•a of parliaiitent, may JMily be called a law
<lf the land, jet none of them can have the
pre-emtof ikce to be stiled lAe taw of the land.
And no Statute, Law-Book, or other Auiho-
isj, printed or unprinted, could be shewn, to
proTB that tbe law of tbe land, being generally
mentioDed, woe ever intended of any other
tbto tbe Commou Law ; and yet even by ihesa
adicr la>r), a man may not be commitliea witli-
Mt % cause espretsed.
But it ttandeth with th9 rule of other legal
ttpositinns, that ' per legem terra;,' must be
mesne the Conunoo Law, which ii the general
nd noivenal law by which men hohl tbeir in-
l«ritMces; nod tfaerefore if a nunipeakofes*
cn^e fenerally, it is uudentood, as Littleton
vbterv^ tect. 99, of the inceruin escuaie,
wUch b a knight'e servioe leouie, for the ae-
Ince of tbe reum, by the body a^ the tenant
iiiiineofwar,aBdpotorccttaioetCusge, which
(irtth only a contribucipn Id nwoey, aod no/
Aodifa Statateapeak.of the Kinc'eCoiutt
nfKecordfit i«mew)toolyof tbe four at West-
ninnei by way of excellency, Cob^s 6 Rep.
SO, Grc|p>iy's case. So the Canonisti by Ihe
^unmrnDnication umply spoken, do intend
die greaiei EicomnniDicaiinn. And the E«i-
Cin hii Institntions laiih, Thnl iLe Civil
bang spoken generally, .is meant of tbe
Civil Law of Eom^ though the Irw of erery
city u a civil law ; as when a man names Tb«
Poet, the Greeiaos underaund lloioer, the \j^
liniits, VirgU.
9. Admit ' per- lef^eni terrs ' extend to all
tbe laws of tbe land, yet a mnQ mast iiot ba
committed by any of them, but by the due pro-'
c^edings that are evcuted by those laws, aud
iqioa a cause declared.
Again, it was uiged. That the king was not
bound to express a cause of impriioument, be-
caose ibere luay be in it matter of state, not fie
to be revealed for a tioie, lest the confederate*
thereupon make means to escape tbe hxiidB of
justice. And therefore ilie Statutes cannot be
intended to restrain all can^mitments, unless %
cause be etpressed ; tor that it would be very
inconvement aud dangeroul tn the state, tq
pubiiib tb« cause at tbe vcrv first.
Uereaiito it was readied by the Commonii
lliat all ' danger and inconveiiience may b#
avoided by declaring a general cause, a) fiir
treason, lu^icion of treason, misprision of
treason, or feloi^r, without specifying the par-
ticularj which can ^ive no greater light to a
coniedcfate, than wdl be conjectured by the -
very apprehension upon the Jinpiisoilnicne, if
nocliing at all were expressed.
It wa» furilter alledg^ed. That there was n
kind of contradiction in the position of the
CtimoiDiis, when (hey say, a party committed
without a cause shewed, oqght to ba delivered
or bailed; bailing being a kind of iraprisoo-
ment; dtiivfery a total freeing.
To tbis it hath been antwered, that it hath
4ways been the discretion of the Judges, to
give so much Teq>«ct to a commitmefit by tb«
command of the King or the privy-council,
(which are ever intended to be dune in juM
and weighty caotes) that they wiil not presently
set them iree, but bail then) to answer wliat
shall be objected against tbero oti bis mnjesty'a
behalf J but if any other inferior o£c^ do com-
mit a muQ withoDt shewing cause, tbey do in-
stantly deliver him, as bavine n? cause to ex-
pect their leisure. So the ildivery is applied
to an iitmrisonment by the coromaad of soniA
iqean minister of justice ; bailing, when it is
done by the camnund of tbe king or hit
couaqil.
It was aigoed bv Mr. Attwney, tl»t bailing
was a grace and fsvaur uf a court of justice,
and that they may refuse to da it.
This was agreed to be true in diveia ca.4e«;
as where the causa appears to be For Felony, or
other crhne* eiprewed, for that there is an-
other way to discharge them in lonie convent-
mt time by their trial; and yet in these cnse^
tlw constant practice baih been anciently and
modemly to bail men : bat wbere no cause of
the imprisonment is returned, but the oommand
of the king, there is no nay to deliver such
person by trial or otherwise, but that of the
Habeas Corpus. And if they sliould be ihea
remanded, lliey might be perpetually impriwQ-
ed, without any reiudy at all; and consequently
a man that had conimitled no olfence, might
beiuaworte case ihano^gteai ogesder; foe
I5S] STTATE TRIALS, 3Chaw,mL I«2a.— i
nltaingio [160
th« titter should have «n ordinarr trial lo
dischnrge him, tha olber ihould otvtt be de-
It was farther Mid, that though the ttituR
orWe^tmiDster 1. c. 15, be a tiatute which hr
waj' of proiitioD did extend odI; to the sheriff,
jret ttie recital of lliat statute ttiuching the four
cases, nharein a inaa was noc replevisble nt
the comoiDn law, nnmelj, tliote that were com-
mitted for ihe death oF a man, by the cotamand
of the king, or of bii juiiicei, or for the forest;
did declare that the justices could not bail sutUi
B one, and that repleviable and bailable were
•jmonimous or all one: and that Stamford, a
judge of great aothoritj, dodi expound it ac-
cordingly (Slaro. pi. Cor. 7i.) and that neither
the statuia nor he say * repleviable by the iheriff,'
but geoerallj ' withuut restraint;' and that if
the chief justice commits a man, he is'not
be iDlarged by an; other court, as appeareth
the Register.
To this it was answered, 1. That the recil
of tlie body of the statute, relateth to the sheriff
unlv, as appeareth by the very wards. S, That
repleviable it to the sherilT, for that the word
imports no more ; but a man committed bv tiie
Chief Justice, is bnilable by the couit of King's-
Bench. 3. That Stamford meaneth all 6F the
sheriff, or at least he hath not sufficiently ex-
pressed that he intended the justices. 4.'ltwas
denied that Tepleriable and bailable were the
■atne, for they differ in respect of the place
wltere tliey are used, bail being in the Kiii^s
Court iifKecortl, repletisMe before the sheriWi
and they are of sereral natures, repleviable be-
ing a letting at larfte upon sureties, bailing be-
ing when one ' traditur in balltom,' the bail are
his ganlen, and may imprison him, and thall
suffer body for b<>dy ; whicb is not true of re-
plerying by sureties: and bail difFereth from
matopriie in this, thnt mainprice is an under-
taking in a sum certAiD, bailing is to answer the
condEmnatioii in civil causes, and in criminni,
body for body.
Im reasons and authorities in the Erst Con-
ference were then renewed, and no eiceptions
taken to any, snve that in !3 Hen. 6, it dnth
not appear mat the coimnaod of the king was
by bk mouth, which must be intended, or by
his council, whit^ is all one, as is observed by
Stamford ; for the two words are, that a man is
not repleviable by the sheriff, who is committed
by the writ or the cammandment of the kiog.
SI Ed. 1, Rut. 9, dors, wss cited bj the
King's Counsel ; hut it was answered, that it
concerned the sheriff of Leicestershire only,
and not the power of the judges. 33 Hen. 6,
the king's Attorney confessed, was nothing to
the purpose i and yet that beak hath been usu-
ally cited by those tJiat maintain the contrary
to die declaration of the commons. And
therefore such sudden opinions as have been
»ven thereupon, are not to be regarded, the
found ntion facing.
And where it was mid that the French of 36
Ed. 3, lloi. Pari. n. 9,wbiciic»nroceive noan*
■wer, did not warrani what was inferred tbence ;
hut that these words, < sans disturbance met-
' tre, ou arrest Faire, et le centre per special
' mandement Ou en autre maoiere,' must be
understood, that the Statntei sltould be put in
execution, without putting disturbance, or
mfeking artest lo tlie contrary by special coca- ,
mand of iti Other manner; the commons did
utterly deny the iiiterpretalion given by tha
Ling's cooosel : and to jostift their own did
appeal to all men that uuJentood French,
And upon the seven statutes did conclude, that
their declaration remained an undoubted trutb,
nut cautroUed by anything swd lo the contrary.'
[The Psoceeoihcs acjiihst toe Eul ob
fiuFFota, April 14, l(i2fl.*
Mr. Kerion acquainted i be house, thatth*
earl of Sufelk had said to some gentlemen,
' That Mr. Selden had razed a Record, and
deserved to be banged, for going about to set
I betwi
And being demanded U
spoken, he was unwilling to name a...,
u^ti the question it was resolved he should no-
minate him. He then named sir John Strang-
ways ; who was unwilling to speak what he had
heard from the earl : hot being commanded by
the bouse, and resolved upon the question, be
confessed,
That upon Saturday last, he being in the
Committre-Chember of the lords, the earl of
Suffolk called to him, and sfaid, < ftir Jobn, will
' you not hang Selden ?" To whom he said. For
wW? The eari replied,' ByGodhe hathraied
' a Record, and deserves to be hanged f .'
This the House of Commons took as a great
injury done to the whole house, Mr. Seldea
beinzemployed by them in the Conference with
the lonls in the great cause conceroiog the
Liberty of the Persons of the Subjects.
The House presently sent sir Robert Phillips
with a Message to the Lords to this e^a; he
expressed the great care the Commons had
upon all occasions to maintain all mutual re-
spect and correspondency brlwiit hoth houses :
theo he informed them of a great injury done
by the eari of Suffulk to the whole huu;e, and
lo Mr. Selden, a particular, member thereof.
t Mr. Selden. " I am called up to justify
myself. 1 see the words charge me to bav«
razed Records. I hope no man believes 1 ever
did it. I cannot guess what this lard means.
I did deliver in whole copies of diven Record*
examined fay myself, and divert other gentle-
men of this house, lliese I delivered in to th«
lords house; and tbe Cleri of ^e Ctdwd
brought in the Records of tbe office before the
lords : I desire that there may be a Message
from this house to the lords, to make at iho
bar there a Charge against tbe lord tbu ^k«
thus ; and I hope we shall have justice." Ex
MSS. Pymmii in Selden's Lif^ in hisWoAs,
vol. , p. 10,
lit] , ST4^TE TlttALS, S Crabuu L IK*.— the h^er^ tf ih: Sdjeet.
[I5S
who by ilwir coiBiiMDd bmd been emplojcd iti
lb< late CtiQf«Tsncc oith tbeir lordibipa : that
du bouse wu vnj aenmble ibereof, ud ac-
conJing to fumm- precerfenu, made tlieiii tmlj
to|(iauit«d witfaii, and demanded justice agaiiul
(be earl of Suftilk. lie read die words, Mying
tkj were Kodken to tir Joha Straogmji, a
iMmber ofuteir bouie.
After a short u»j, ihe lordt called for the
■cntngeT, to whom tbe Lord-Keeper gave this
as>ter; be U|iu6ed ihe peat deiira and care
of their loidshipi to maintaiD and increaM (he
anaipoadeaciu betwitt both houses, and as
1 taliiaoay thereof thej bad partly taken into
ansklenlioD the chaise : that the earl of Suf-
bSk, being a man of great place and bODour,
lad vohuitarilj proteKled npon his honour and
ml, ihat there passed no lucb words as those
ftooi him to air John Slrangwajsi and the
Loid-Ke^ieT wished that Lheir lordships speedv
onKcedings in this business. might testily their
Ikc and good-will to the commoas house.
The next day being tbe 15[h of April, tir
Jolia Strangvrays made a Protestation openly io
the bouse, wherein he avowed that (notH'ith-
Aanding the Earl'i denial) be did speak ihnw
KHili positively unto him, and would maintaiB
il sDj way filling a member of that bouse, or a
{nitteman of honour.
They ordered Chat this Protestation should
lie entered into the , Journal- bnak, and that
t canunittee should take inio consideration
*bt was fit tbr the bouse to pmceed to, for
tke justification of sir John Stmngway), and
•hat was fitting Io be done in ihis case, and to
tiuoiQe witoeasei of the proof of the words.
Upon the ITtb.day sir Jolm Elliot reported
■kt tlie (ommitlee bad done ; That they had
teat for and examined git Christ. Nevil ; who
irltled, that upon Saturday being in the Lords
Csaunittce-Ctiainber, the earl of Sufiblk said
tbu) to him : Mr. Attorney hath cleared the
buuDcu, and hnih made the cause plain on tbe
king's side ; and liirther said, Mr. Selden halh
Tued a Record, and hath deserved to be faaoe-
cd, and tbe Imter bouse should do well to Join
vith ilie higher in a petition to the king to hanj|
Iud; snd added as a reason, for Mr. Selden
mit about, and took a course to divide the
i'lrn Erom his people, or words to that effect.
And being asked, whether be oonceived that
ihuuwDrds of dividing tbe bing from his people,
U relation to the wl.ole and general action of
Ur. Selden before the lards, or to the particular
i>f raiitig a record ? lie conceived ihey were
rderred to Ehe general action.
Tbej had examined one Mr. Littleton, wbo
raafbud be heard the earl of Suffolk si»ak to
XtJeman, whom he knew not, words to this
, viz. That he would not be in Mr. Sel-
den's coat for 10,0001. and that Mr. Selden
■loerved lo be hanged.
The second part of tbis report concerned the
jniticukr of sir John Strangways, wherein
■Ixngh tiie committee found no witncs; to prove
^ words spoken to sir John Strangways, yet
■we atte aunj circuiiutaocea whi^ peisand-
ed tbeiD of tbe truth thereof. 1. That tlw
same words in the same syllable! were spoken
to sir Chrikt. Nevil, and that the earl as b«
called to hioi sir John Strangways, so he called
to him sir Christ. Nevil. 8. That the carl of
Suffolk called sirJohn Strangways to him, end
spake to him, was proved by sir Geoige Fane^
and sir Alei. Si. John, at which time tbe earl
seemed fiill of that which he delivered, 3.
That sir John Strangways instantly after hie
discourse with the earl of Suffolk went to tbe
esu'l of Hertford and deliveied him the paawges
betwixt them, being ibe same related in the
house. 4. From tbe nnwilliiigness of sir John
Stranfjwnys, thouah called upon by iba house,
to testily against (Tie carl, till it was resolved by
question be should do it : firom a probability,
that had not these words beeo spoken to biin-
iieLF, it is like be would have produced tir Christ.
Nevil, from whom be also beard the same. 5,
From the worth of the gendemnn, and bis in- ,
genoous Protestation in the bonse, I'hat be
was ready to jusiify (he truth of »hat be said
in any course the bouse should think meet, or
was fit for a gentleman of honour.
Hereupon the bouse resolved upon tbe ques-
dalous imputation upon Mr. Sekleu, a member
of tbe house, being employed in the service of
the house, and therein upon the whole boua*
of commo[is. 3. That tliis house, upon due
examination, is fully satisfied that tir John
Strangwavs (notwithstanding the earl of Suf-
folk's den^ial) liaib affirmed nothing but what ia
most true and certain. 3. T'lat tliese. particu-
lars and additions be Bgain presented to tbe
lords, and tlie earl of Suffolk be newly charged
at tbe bar, and the lords desired to proceed in
, being against the hiiuse of commons,
doth deserve."
Sir John Elliot was sent with a Message to
the lords; who after a while returned thia
Answer, That they had t^en the Meisnge into
consi deration, and wouM further take it into
due consultation, and in convenient time
would return an answer fay metsen^rs of tb«r
own. But what woi done in this affair doea
not appear.]
Mr. Noye, ad the 16th of April, offered an
Answer to tbe inconveniencies presented by
Mr. Attorney, which were four in number.
First, where it was objected, that it was in*
convenient to express the cause, for fear of di-
vulging the ' Atcana imperii,' for hereby all
may be discovered, and ahundance of tmiton
never brought to justice. To this (hat learned
man aosw^ed, That tbe Judges by the inten-
tion of tbe law are the king's counsel, and
the secsets may safely be committed to all or
some of them, who might advise whether they
will bail him : and here is no danger to kin^,
or Eubjecta ; fi>r tbeir oath will not pennit
159] STAlTliUALS, ^'C«asus{. iM6,'-^Pr«»taiigii»l'artiailmt»lk»glo 1%^
thoin to rereol th* •ocretBoftbakiig, nary^
M detain tha tul^tct long, if by law he beto
be Iwiled.
SecondlT, Pur that Bbjection of the cliildren
of Odandl, Ac laid tbis for a ground, that the
king can do nn wranc; but in cam of eitreiae
i»c«wity, we mint yield urnieumei for the prO'
wmiCioa of die uaie, ' obi unins daimwiD
'SiilllaEe pabliOH (ependitur :' he laid tbara
WM no truM in tic diildrcn of traitor), no
moDg dme if liwy did ' tabefocere,' or ' mar-
* ceac«re in ewcere.' It it tJie nme caM of
Beoenity, M wbca tu svi»d the barniogofa
MwQ, lie ar* forced to pull down an bonett
■nan'* haute, or tn compel a man to dnell by
the seK-«id« far dclience nr fimitnde. Yet (M
king can do no tmiiig, fur ' potentia jaris est
< noD injuria :' trgo the act of the king, tbougli
to tfac Hrang of another, i« by the law miule no
wrong 1 at if be (Mnmauded a petH> to be
kept in priton, yet he ii recponiible for bit
wroRR ■. he quoted a book 43. 6. Ah. Port.
Thirdly, The iAuaace made of WeHKiinst.
fir»C he said (here wm a great diOkrence be-
t»een ihota three. Mainprise, Bail, and He-
Verin. The StatuU tavs, a man cannot be
replevied : ergo, not bailed non ugmtttr.
Hainpriie w under pain ; bail it body for
body : btit no pain ia ever in court to be do-
dared, Qnlest the party appears. Replevin is
neither by aurety nor bail; and Replevin it
Fourthly, Where it is said that bail it M gr»'
(M, h* nntwera, That if the prisoner comet to
Habeas Corpus, then it is not tx gralUi, yet the
court may advise, but mark the vofda ' ad
' tabjiciendum et recipiendum pront curia con-
' Bideraverit.' Now it is imponible the Jodga
Ihould do to, if no caute be ex|iFened ; fbr if
Ihej know nO canse, be may bring ihe first,
tecond, third, and fiiurth Hnbeat Corpus, and
•D infinite till he find himself a prrpeldal pri-
toner-. so that no eaiBe expreiscd, it worse fbr
a man than the greatest cause or vlllkiny that
can beimagiued. And tbot far proceeded that
learned gentlfnrao.
Mr. Qhmite soid, That by l«Toar of the
boose of commons he had liberty to i^Wnk, if
Oppormoity were offered. He-applied his an-
swer 10 one paiticular of Mr. Attorney, who
ftssiened to the king four great tnutt: 1. War,
S. Coini, 3. Denizens, 4. Pardons; it is as-
■•nied to, cJmt the king it inuted with all tlicM
fo«r legal prerogativH, but the a^ment (bl-
lowaih not, the king is tmsted with many
premgaclvcs ; erga, in thit ' non aeqaitur non
* est sufficieni enumsmtio pnrtiuni.' He M'ld
he could nmwer these particulars with iwo
rulea, whereof tbe lirsl should wipe off the
irst and tbe Mcond; and the other, the third
and fourth.
The first rutris this : there is no fear of trust-
■Dg the king with any thing, but the fear nf ill
eonnsel ; the king nay easily there be trusted,
where ill counsel doth not engage both tbe
king tod Mbjeett, as it doth in matter of war
and coin. If he mitcairy in tbe wars, it u nof
always ' plectuptor archivi,' but he (intrtt
eqnJly with the p««ple; if be abate bis coiti,
he Itiseth moic than any of liii people ; trm
he may tafkly be trosted with the flowers of m
The teooad nde ht begkn was this, WbeB
the king ii trusted to confer grace, it is olife
thing; but when be it tnHI^ to infer an in-
jury, it it anodier matter. The fonnto powet
cannot, by miBconnMifitig, be brought to pi«-
jodtce another, the latter 'may ; if the king par^
doneth a eiilty taan,)iepunjtl)eth not a {{ood
satqect; if hfe^CncEen itci'ersomanyatMinzVrS',
it it bat dkwBim (tne injuria : we eUnw fain i
liberty to confer grace, hot not without cmxb
to iDRr pnniahmcnt ; and iRdeed he cMtnotdo
injoiy; fbrif he cnnnnnnd lodoaman nrotifL
tbie command Is void, ' vt actor fit aiAhur,' aM
tbe actor becMBes tlip wrong doer. Tlierelbi^
the biiig may safely be trosted with war, coii^
denizens, and pardon i, but not with a power to
impritOD withunt exuretnion of cause, or limi-
Mtionof time; as the pott telb in, bect»iS«
' libeitae polius auro.'
After time debates, the bonsfc of pimt
called upon the Jui^«s to answer the Cnai^
•f tbe house of commoin, for their Jodgment
on ih« Habeas Coipus, brought in Mich, tfrm
by the Gendemen imprisoned fbf refusing to
taibfcrib« to tbt Loan.
The AvswEK of ilie Judge* for matter of Act
upon the Habeas Corpus, 9 1 April.
Tbe Chief-Jytlire taith, They are piepar«d
to obev our command, but they deurfa to hk
adviied by as, whether tbey being iworn upon
penalty of forfeiting body, lands,, and goods,
mto the king's hands, to give an account ta fdm,
mat wfllioHt Warrant do ihis.
the Dtikt said, lie had acquainted the king
.with the business, and for aught he knew he
is well contwit Iberewith ; but for better assup.
ance, he t(ath seDt his brother of Anglesey tb
know his pleasure.
DetomUre. tfa camphint be made by*
meat! Inan Bgainst the greatest officer in ttib
place, he it to gite tn account of his doings tt>
this boast.
Bishop of Uneoln. Tliii motrun proceeded
from him, atid su took it for clear, that there
wat an appeal from the Chancery to a higfan
court thm the King's-bertch, and that court
bath evn given an account oftbeir doings.
The kinl Say. He wondered tbere shotM
be any qneatioo made of this bustness, becaoie
in his opinion, tbn being tbe higbest court, did
admit of no appeal.
The Prtiident. Tbe Judges did not do ibh
by way of appeal, hot as themost Comolon wny
n, this bein
ftw litem.
a being a. matter c
mJng tb*
Lord Sty. If they
■elves, we most take
point of our privilege.
The Duke. This was not done by ihe J(
as feariag to aoiWer, but lespect to Q/t
ffi?
161) STATE TSIAIS, SChablesI. IGn.— the Liberty of the Suhjtci.
[I6t
And BOW hh brother WB3 cnrne xith ans'
fimD the kin^ thnt thejr might proceed.
Older WAS tai-ea diat tbis pauage should
hccnteicd into the Jnuniiil-Baok.
And 3o Judge Wbipioce spnke.
My lonh, we arc b_T your Bppointriieiit h
ittdj lo dear itaj aspersion of (he liouse
rammons in iheir lale presentment upon the
Kin^Vbcnch, that t)ie .Subject nat wounded in
tb( judgment there lately p^iven. IT such a
tbing vtrc, my ivrds, your lordships, not they,
iart the power to qaestion and judge the same.
Bin, my tordii, I say there was no Jodgment
ptta, wbereby either ibe prerogative might be
oilargeil, or tbe Higiit of the Subject trenched
upon. It ii tme, niy lonls, in MicbnelnsBi
tenD last, fonr gentlemen pelitioned for an
Habeas Corpus, which they obtained, and
cannjel waa assiened unto them ; the return
was ' per speciale mandatutn domini regis,'
which likewise was made unto us under the
budt of 18 privy counsellors. Now, niy lord;,
if we bad delivered them presently upon this, it
Bust have been, because the king did nat shew
cfae came, wherein we should hnve judged the
tiDf had dohe wrnn^; and this is beyond our
bmledgr. Tor be might hure committed them
fer other matter^ than we could have imagined.
But tbey ntigjlit say, thu»they laight have beeo
Irpi in prison all their days ; I tunwer no, but
wedid remit them, that we might better advise
of the inatter : and ihey the ne« day might
hne had a new writ, if they had pleased. But
tbtj say, we ought not to have denied bail. I
iBiwer, if we liad done so, it must needs have
TcAerted upon the king, that he had unjustly
inpritoned them. And it appears in Dyer,
i tih. that divers gentlemen being committed,
■nd requiring Habeas Corpos, some were
btilnl, others remitted -. whereby it appeon,
tniich bleft to the discretion of the judges.
For that which troubled so mach, < remrt-
' tilur qunusque,' this, my lords, was only (as I
nid before) to take time what to do ; and
whereas they will h»ve a differcice betwixt
' temittitur' and ' remittitur quousque,' ray
lordi, I confess I can find none ; but these are
M» inventions to trouble old Records. And
Win, my lonl*, we have dealt with know-
ngfand understanding; for had we given a
Jingment, the parly must thereopoo haie
ntai. Every judgment must come lo an
*« iTi matter of ftict, or demur in point of
Itw; here is neither, therefore do judgment.
Ai to endeavouring to have a Judgment en-
••"d; it is true, Mr, Attorney pressed the
**uie for his master's service; but we being
Worn to db right betwirt ihe king and his lub-
JMts, commanded the clerk to make no entry,
but according to the oJd form; and the rule
*M pven by the Chief-Justice alooc. I have
Sit my time In this coun, and I spqak confi-
'ly. I did never see nor know by any
"eord, that opon snch a return as this, a man
*» hailed, the king not fir« consohed irith in
"uacMeaitbis.
»0I~ III.
The Commons House do not know what
letters and commands we received, for these
remain in our court, and were not viewed by
them : for the rest of the matters presented by
the boose of commons, they were not in ajpin-
tion before us, whether ibe k^rig may commit,
and how long he may detain a man committed.
Therefore having answered so much ns con-
cernelh us, 1 desire yunr lorilships good con-
of what hath been saiil.
Judge Jotia said. He was here to deliver
before us, what Judgment weis given before
them concerning the Habeas Corpus: he lin-
swered. No Judgment was given, and tbe mat-
ter of fact was such as my brother dehvered
onto you yesterday. These four gentlemen
were committed lo the Flyer, Gate-house, and
marshal of the honshold. Foar returns were
made upon the writs, and every one of them
bad a connsetlor appninied, wLo bad copies of
the returns. A rule was grunted, their council
heard, and exception taken to the return, be-
cause it did not sben cause of their caption.
These were ef no force, in tlic opinion of the
Judges. The next exception was, because no
cause oftbeir commitment was shewed, which
tbe judges held to be all one in point of law.
Tbtn, my lords, they alledged many Precedents
and Statutes of themselves, which tbe king's
attoniev ansnered, That persons commit,ted
by the king, or council, were never bailed, hut
his pleBBure was first knonn.
We agreed at the Chamber of tbe Chiefl-
Justice, that all tiie Statutes alled^ed are ia
force ; but whether we should bail them of M,
was the question, therefore we remitted them
giimi$^Bt. After which Mr. Attorney required
~ Judgment might be entered: I commanded
le clerk, he should uol
I be done, because w
ised.
But some wilt say, our act is otherwise : I
nswer, No ; for we have done no mora tbaa
re do upon an ordinary writ, when itc purpose '
0 be better advised, and that was only an in-
terlocutory order. But, my lords, put the case
~ Habeas' Corpus should he granted for one
at is comtnilted by ijie house oFcommons,
would they (think you] take it well be should
be bailed at his first coming to the court P I
tliink they would not, and I think the king
would have done su in this case. Now, my
lords, (here is apcliiion of right, andopelitioD
of grace: to be bailed, is a Inatter uf^ grace ;
therefore if A man be brought upon an Habeas
Corpus, and not bailed, he cannot say the
court hath done him any wiong. I have now
served seven years a Judge in tlris court, and
my conscience beareth me witness, that I hava
not wronged the same ; t b:ive been thought
sotnctinic) loo forward for the Liberty of tbe
Subject. 1 am myself Liber Harno, my ances-
tors gave their voice for Magns Chatta. I
enjiiy that hou'ie still, which they did ; I do not
now mean to draw God's wrath upoli my pni-
terityj and therefore I Aitl neither atfvdDcs
IflS] STA'^TRIAl^, SCaAMJSsI, IGa^.—I'roceedingt in Paflimnau relating to [16*
lIiB king's prerogatiTe, nor lesen the Li>irrty of
the Subject, U> ibe duuer of ei\her kiiiu or
peuidt. Tliu is mj prote^oa befure (iudoad
ifour lordahip*.
Judge iMMtridge inid, It is no more (il for
« judg* ^ decltoe to give an account of his
doings, limit for a Christian o( hia bitli. God
Liioweth. 1 have endenvourcd alwnji tu keep it
good cno(ci«nce; for a troubled one, who cnn
Gear? The kingduoi liulds of none but God,
and Judgments do not puss privntely in<JlBlli-
ben, but public); in court, where ev«ry one
mny liear, which causeth judgnem to be given
wirli maturity. Your liirdsliips have licanl the
particulars delivered b; my brethren. Low tbat
counsel being assigned to those four Gentle-
men, in the latterend of Michaelmas Tmnllieir
cause received bearing; and upon cpnside ration
of tiie Slatuces and necords, we found some of
tbcm tn be according to {Le good old Uw.of
Blugns Cbnrta : but we ilioutht, that the; di '
' tiuc come so close lo this case, as tliat ba
should be thereupon presently granled. Mj
lords, tie Ilabena Corpus consists of three parts,
the VVtff, tlie lUlum upon the Writ or »che-
dute, and tile Entry or wile reciting the Habeas
Corpus; and the Heturn, together wiih the
opinion of the cuuit, dther a ' remittitur,' or
< iraditur iii bnlltuni.' In this case a remittitur
mak i^rrnteil, wliich we did, that we might take
bf^ltor iulvisc'inent upon the case, nnd upon the
remiiiit :r (riiy lords) they mti;bt haie had a
new writ (he next day; and ! wish they had,
1iccii|t^e il umy be they bad seen i^orc, and we
hnd been ctised of a great liibour. And, my
. _ _ . coiDimit. Tberefora jastly we think,
we delivered the interpretation tberrof to that
purpose : for, niy lords, Itt terra is iiut to be
found in this stattite, they gave me no etample,
neitlier was there any caase shewed in the re-
turn. A precedent (my lords) thnt halhrun in
u storm, doth uot much direct us in point of
law, and recirds are the best testimonies. Thosa
precedents iliey brouglit beiug rend, np shewed
iheui Wiherciii they were mistaken ; if we have
erred, ' errimius cum patribus,' and they can
shew no precedent, but that our predecessors
have done as we have done, somelimea bailing,
suinetimes remitting, sometimes discharging.
Vet we dn uever uuil any committed by the
kiug, or his council, till bis pleasure be first
known. Thus did ihoLC. J.Coke in lUy-
ner's cue. They say, ihis nould lihvc been
done if the king bad not writren ; but »liy then
Hits the letter read and published, "and kept;
and why wag the tunit-cierk &ent carefully to
enquire (because the letter so directed) whether
these men oQered for b^iil were Sabsidy men i
The letter sheweth also, that Beckwlth was
imitted for suspicion of being acquninted
1 Ibe Gunpnwder-Trenson ; but no proof
being produced, tbe king kft him to be bailed.
The Earl of Wil
pri.'!sed an entry, we all straitly charged the
der)(, thtt he ibnuld m»ke no other entry thao
' mcll ns uur predecessors \imI usuall* made in
like C-neii {nt\hk dilfi-reiice (my hirJa) betwiit
• rraii'titur' and ' reiiiiititur iiuosque,' I could
nev-r ;;3t Gnd any. I hnve now sat in this
cou'ithttren years, nnd 1 shuuld know soipe-
iliing ; surely, if 1 hud gone in a mill so long,
some dust would cleave to my clonths. I am
old, and have one foot in the grave, iberefore
r M\ look to the better part, as near as 1 can
But ' oinnia habere iu memoria, et iu duU
'' errare, divinum putius est quam humanum.'
L. C.J. sir Nkhoki H^dr, said. He ;hould
not speak with confidence, unlets he might
itanil neht in the opinion of the bouse ; " " '
protested what he ipake the day before,
not said by him with aiiy purpose to treoch
upon the privihties of thit liouse, but oi
that respect which by his place he thought he
owed to tbe king. He said, cnncenung the
point he was to s|^ak of, that he would not
trouble the lords ivith tbinra fnrnierly repeated,
wherein be concurred with bis brethren. He :
•aid, if it were true ibe king might not commit,
they hud done wrong in not partly delitering;
for, my lord^raaith lie), tlieseStatules-nnd good
bws beinii; ajl in force, we meant not to trench
upon itny of ibem; most of tliem lieing com-
m^'ntnries upon Alat-na ChaHa : but I know
not any statute that goeth su likr, tbat the king
■ Speech, 2\ April
My lords, I will observe something out of
e law wherein this Liberty of the Subject's
person is fountlcd, and some things out of pre-
cedents which have becu alledged. For tbe
law of Magna Cbarta, and the rest concerning
these points, they are ackuowledged by all lo
be of force} and tbat they were to secure ibe
subjects from wrongful imprisoument, as well,
or i'a>hcr more concerning tbe king, than tlo
suinecL Why tlien, besides tbe Grand Charter,
and those six other acts of parlinmt^nt, Jn the
very point, we know thnt iuagna Charta bath
beeu at least tliirty times confirmed ; so thnt
upon the matter we have six or seven-and-thirtj
act) of purlioin^it to confirm this Liberty, aL-
tliaugh itwfs made maticg^ of derision the other
day in this houw.
One is that of SG E. 3, n. 9. and nnolher in
the same year, n. IQ. nut printed, tjut yet ac
good as those that are; and that of 49 £. 3.
cap. S. so express in tjie point, eq>ecinlly the
Petition of tlie Commons, that vear^ whicb
wns read by Mr. Utdeton with tbe kmg'* ai^ '
swer so full, and &ee from all exception, ta
which I refer your lordships, that I knov not
bow any thing in the norld can be more plain.
And therefore, if iu parliament ye should make
nny doubt of thnt which it so fully confinned
in patlioluent, and in a esse so dnr go abuiu
by new glo&ses to alter tlie old and good law,
we ehHll not only forsake the steps of our an*
cestors, who in cases of small importance would
answer, ' nolumus mutare leges Angl'^ •' but
we shall yield up and betray our nght id tbe
, Cioo^^lc
STATE TRI.\LS, 3 CuAstis I. IBUB.—OetSieTts'qffheSi^.
[lOft
;ie*(at inheritBDce tbe subjects of Engbnti
Juir, and thai is ihe lavrg ot Ertglnnd, And
tnil; I bonder hnw anj msn can admit of such
a gloss upon tiie plain toil, ns tlJnuM mot-
throw tbe force of the law ; for whereas tlie
bn of Magna Charts is, iliat no ficcm:in shtitl
be impriuiDed but bj luwful JudgmciU of his
peers, or the law of the land ; llierffiire that
the kiD| hath power to commit without came,
a X sense not onlj eipretsly contTdrf to other
Kts of pirlinment, and tfiose especiellj for-
!iteH;r cited, tmt uni
liaii not CAQunit, but bj ihe l>i* of tin
Ae oieiDing most be, u Mr. Attorne; would
Ure it, that the king mott not commit but al
bit own pleastire. And shall *e tliink that^sur
incision were so fnulisb, to hazard their prr-
aini und «Eiates, and labour so much to ^it n
liw, sad to linve it thirlj times confirmrd, ihnt
the king might not comnil his subjecis but>i
liiiaHn pleaiiire? And if fae did comii^it any of
Ui •uhjects without a cause shenn, tlirn he
mnti lie during pleasure, llian which iiuthing
cu be imaiiued more ridiculous, and cont[ar}>
to tme reason.
Fur the Precedents, I observe, tb«t there
tath been manyshenn, ]>j irtuch it appeals to
me etidentlj, tliat such as hare bveu ronn-
tniited bj the king's council, thej liaVe been
drlirertd upon Habeas Corpus, and that cun-
stiitlf. It is true, that some precedents were
brought on the king's part, that wlien nomn of
llaae peisoni desired lo be delivered by Habeas
Corpus, the king, or lii* council, ti^ui6«d bis
■mjestj's pleasure that tli^ should be dcliver-
ti, or tbe king's nttomej hath come into tbe
mit, and related the king's command ; hut
tte teems to nske for the subject ; for it be-
itiK m his majesty's pnver to deliver them, who
tj bis special comutand were imprisoned, mny
KM He nell think, tliat bis majesty would ni-
iWatthat time have stayed tlicir deliverance
b; law, than rurtlicred itwitli hialetten; and
made the prisonen rather beholden to him for
b grace and mercy, than to the judgea for
JBstice, had not his nuijeaty known that at that
(imt ibey ought to linTO been delivered by
km ! 1 thinic no man would imagine a wise
king won 1(1 'have eul?i!red his grace and prero-
gitiva, if any such prerogative were, to be no
caniinually questioned; and his majesty and
ha cnuncil io far from commanding the judpei
DM to proceed to deliver the prisoner by iliein
mntoitted, nitfaiuit cause sliewn, as that bo
die other (i<)e, which is all the force of tlie^e
precedents, the king and the council signified
lo die Judgea, that ^ey ihinld proceed tn de-
liier the parties. Certainly if the king had
cballenged any such prerogative, that a person
onnnitted, withoot any cause shewn, oi^^t not
to be dtbTered by »l>e Judges witlmut l«s coo-
Mnl, it would ha^ aimeared, by one precedent
or other amoogst nil tbnt have been produced,
tte bis majesty woold have made lonie claim
IB Dk^ a pKK^ire. But it appears to the
contrary, that, in many of these cases, Ae k in;
or bi> coiincil did (never interpose; and wbere
they did, it was always in alhrmanon and en-
couragomeiit in that court to proceed. And
bcsidi-s, the ivriting of ktteis from his majesty
to ihe judges to dojusittco to his mtijesty's sub-
jects, may with as good reason be interpreted,
that without ibosc Utters tliey might not do
Jtreticc : also llie king signifieit his willingness,
tliat such and such persons, nllich were com-
mitted bv him, thonld be delivered; therefore
they codld not Lc delirciod without it, which
is a strange renion. So that finding the lana
BO full, so m«hy,-nnd so plain in tbe p'liiM, and
finding, thnt nheucver any were coniqiited,
without cause shewn,' and brougbl their Ihtbeas ^
Curjras, they were delivered, and no commnnd '
ever given to the contr:iry, or cUim iiiu'le 'in
the king's pnrt to any such pterngiitivc ; I mny
safely concIiiHf, ns the house of commons h:ive
done; and if any one precedent or mo of Inle
cnn be ^wn, thnt llie Judges bate-Dol deli-
vered the prisoners so eomitiittf d, I think ii is
their fault, nnd to be inquired of. Eut con-
trary, it seems lo me tn be on undoubted li-
berty of the Subject, that if he be cuminittcd
without cause, or without cause slreiit, yet he
may have some speedv course id bring dunsclF
to trial, either to justify his own iunnceucv, or
to receive punishment according to his hiulti
for God forbid, that an innocent man, by the
laws of Eugland, should be put in worte casa
than the most grievous mnlelftctors are; which
must needs be, if ihis shoulil be, that if a causa
be shewed, he ihay have his trial ; but if none, ,
he must lie and pine in prison during pleasicre.
Mr. Serjeant Ashley, the other day, told your
I'lrdivhips of the emblem of a kii?, but hy his
leave made wroug use of it. Fur a king bean
in one hand tbe gloire, und in tlie other the
golden scepter, the types of sovereignty aud
mercy, but the sword nf justice is e\et curried
belore him by a minisii-r of justice; vihicli
shews, subjects may have their remedies fir
injustice done, and appeals to liiglier powers:
for the laws of I'ji}(lBud nr« sn favoiimfale to
their princes, tu tliey can do ui> injustice.
1'lierefore I will concinde, lu all dis|>uies I
hold do, ' Mnpna est veritiu et pravalebit ; so
1 make no dmibt, we living under so good a
prince as we do, when this ii represeu'ed unto
liiin, he Will anawer us, ' Magna est Chariit et
' pra-vnlebit.'
From this time to the 9Sth of the same
month, the House of Commons in a Grand
Committee spent most of tlieir time in debnte
about Martial Ijw, and part thereof in giving
llie lords a meeting at two conferences, .con*
cemiiig their resolves, in order to a Petition of
Kigiit, tranfmitted by tlio comnioai to ihor
lordships.
Friday, 95tb of April, 1«98.
Tbe liOrds had a Conference with -the Com- -
mons, where tbe I/Td Archbishop of Can-
terbury, (Dr. George Abbot) spake as Al-
lows:
163] STATE TJtiMS, 3 Charles I. 162^i
tbe kiue's prcnigaiive, nor Iwen the Lilierty of
llie Sutjcct, to ibe danger ol' eiiljer klii)( or
pijujile. I'Uii is mj^ prolession bel'uie OuU imil
yuiir lnrd.^lii|j«.
Juil^e Uo<Wmd^< said. It is no more fit for
a JiHl^e to decline to give an ■tcoiint of \n>
doiii;;^, lliaii^ fit a Christian of lii» fuiili. God
kiioweth, 1 liuve endeavoureil alwaj^i U) Lcep u
good conscience; for a troubled one, wlm cr.n
btai' i Tb« kingdom holds of uune but God,
and Judgments do not iiuss privawly in cliani-
bcra, but publicly in court, where ev«ry uiii:
luiiy hear, wliich causttli judi:;uieut to be ^ivcn
wi'ti inuturiry. Your liinlaliipH biive bourd ihc
pnrticiiliirs delivered by mj brtthren, liciw tliat
counsel being assi^ucd la tlio^e four tleiiLle-
: men, in tl.t: Ultereiid of Micliaelmns Tt- rin tLt-ii'
cniise receiicd bearing; and upon cuiiEiili-mlioii
of liie Statutes and Records, we found some n;
tliiiu f] be according to (he good olii law "
Ma°iia Cliurca : liu we ibou^lit, tliat they ili'^
rot come so close to tfils cose, as tlint h-.y
tbould be thereupon presently gnuiiei). Jt^
lords, tlie Hubens Corpus consists of three puti
the Wiit, the lUtum upon the Writ ov »i
dule, and tltc Entry or Kule reciting the H.il-.
Corpus; Biid tlie Itelurn, Uigetlier kIUi l
ojiioioo of liie couil, ekber a ' remitlitui-.
In th
1)mI, V
e did, that
re<ni:iit :r (my lords) they nii£ lit hnic
new v»ril the ne»t day; and 1 wish tbfi
hcc-.iu'e it luny be they h»d setn nioit, :i
had bct-n ensnl of ■ grtat tiibciur. Ai.
hirdj, ivhen tlie AttorJiey, upon the ren.
pr.:r!.ed nn entry, we all straitly clmi^
ctfrjj, th'it be sb.inld make no '
11ke<
prcJoc
<:«l u
(u.yhml.V
iTiiiLii und ' leniitlitur quosf|ue. I
■T-t find Hny. i bnve now sjl
<i><-e!. yenn, and 1 should kiiot^
; surely, if 1 had gone in a uiili -.
dust Hoidd cleave to my don
' ' e foot in the gr«Vi
, lb.
I»
Bot ■'
•ernire, divlnum potius est qiiani huniii;.
L. C.J. sir Nlc/iok, Hj/dr, said, Ho
not speak with conlidence, unle>s he
staud right in the opinion of the hon^i ■
protested nkat lie spnke l1;e dny btfoi.
nnt said by h.in »iih any purprjje to i
npou tlie privil,'L;cE( of this honse. but ■!
liiat respect whic b by his place he tlin..
owed to the king, lie wid, cnncfriii
pnhit he WHS to speak of, that be v.oii .
trouble (be lords with things fiiriuerly rci
wbereio he concurred wiih his bretiin:.
said, if it weie true ihe king miglit iiol <:■
they hod done ivroni( in not partly deli
for, niy liirdsTsoith be), these Statutes m
luns bein: njl in foriu;, we meant not to '
upon liny of iliem; most of them beiuj'
in..|it.,ri.-s ujiou ^Ja^nB Chn^ti, : Sut I
not any ititute that goeth so fiir, tliai :
itizecy Google
HM4& 'I'HIAIS, H Cbakles I.
■•WW anmer, (Ccoriling to the
— tiinr hnuse. But it is mimifctl
m-t tM> lliniiked for it, there is a
.•« in sirectioD to the sanie end
-<«Mi MiL'li goad liarmuny, tliat I
ttt^ftjit l«ite to borruvr ■ coiu-
-••■■•■r, ur iiBtUTuI philosapli^ :
— ^•■>uiii; aud luned brought to-
,_- Y...,Kd oil, litile Binivri and
.:.<. utlicr, tliough it lie still;
i.u LHju«r to reply, jet theac
_. , . , juiidcd ctinaDt but work in
^ .. isi.l uilbfullj report these
., from whence in due time
..Jsliipt shall rective acoo-
■ ^-"^li, about the five Propo»-
'■•n the Lords to the Hou»e of
■ ■'■■ril V6, 1698.
.iv, how we liLe of the Pro-
Mt resoluiionf of Ibw, nnd
>iuostioii of them. And at
> I hope ihej of other plocea
';heiD, ireof the same luind
'' llieir lurdihipt lajiog ihcm
■ .It thoy nould have to be Ihw,
. ik to ohat comei from ui, so
: comes from them, and they did
' '. 1 tbiok there is out gae oF
' ■' desired aod asked. The first
fit, fur ibere i* no use of theni in
lestions. The fourth oe have
li'liltli iinot 6t tnba had at all.
I declure that Magna Cbuta and
'.«, conceived to be declacalioni
inns of that law, do still itand jn
intents and purposes. Consider
. ask : Who douhts whether they
ceor no? Indeed some have puli-
lUspia Ghana is hut a charter and
llut It is an act of parliaoieot; and
apeak what they wUi, that was tlie
r statutn till printing came in. The
were sent down in the king's name to
tuned, and he prefixed his name, and
.- ull nboul UcD. 6, ALso the body of
C i.nrta is, that it is confuted to by
i»rls £cc and for tbe assent there
irfu-enth granted, and clearly that
l-t; without an act of parlinnieiit : and
--lint it is, that all else in it is to this
' .11 executioD. Id fonner parliaments,
■V at least, it was cooifirmed, but it
I* rii necessity, and yet tbey are surer
.- ilt-cl»ratian you will now add. For
<:<!. ihHt his majesty will declare that
';l<.-(-t hath a Propriety in bis gf»oiit,
■ • n y of his pettOD ; tbey that drew ibis
•ii"iinsoraewhaC mora than I understand:
* ii'it «hat we gain, -Who doubts of uur
< iv ! [ aever heard it denied, but in tlie
. uliich i« of ua weii{ht. For the third,
' iiia|«ty will confirm all just liberties;
'II (ell what this will produce. It is not
■.-.juble Ilia majesh with it. Tbe fourth
.1 to be asUd; iW in all cases witbio
(170
t62S — the Liberty qftlu StAjat.
tbe cognitance of the Common La
iug tiie Liberties of hit subjects, his m^eMj
would proceed according to the Common Law.
1 conceive his msjeiiy never froceeded hut ac-
cording to law. it may iie lliere were cnmroit-
ments, yet tlie couftt of justice were open fur
the parties t j seek justice. And if any thing
be done against thelnw, there, it is thetuult of
them tliitiit there. So we shall take it. Butyet
his majes^ hnth done nothing against the law.
For the finh, it is not fit to be had, and tliere-
fore not fit (o be asked. If we ask it parlia-
mentorily, we shall have n law lo tliat sense,
and so we shall destroy nur rundnmeutal liber-
ties, which we have already resolved. Now a
* coDvenient lime' must be set down. la
former times thtre was no need of such inno-
Tutions ; for such law of siale, in a < conve-
nient time' every man was to be delitered bv
law. If they were » wise then to told I't
needless, why is it now necessary? Aad far
' convenient lime ;' uhat is convenient time?
Who shall judge of it hut the Judges? Aod
so ihey now shall have the poiver ot the lord),
and ot the council. Also ni>w we desire in
some CBSES th6 prerogative, &c. I would fain '
see if anv person may not becommilled at plea-
sure by this clause, and no man is eiempted.
At tliis litrle gap' every man's liberty Inay in
Ihe Cumroons were not sntisGcd with th««
Propositions, which were conceived lo choak
the Pctiiiun </( Riglit, tlien under considetutioii,
but demurred upon ^ra.
Monday, 28 April. The Loan Kr.Epen spake
. to both Houses of Parhnment by the King's
Command, who was then present.
My Lord% and ye tbe knights, citizens, and
burgesses of the House of Commons, ye canool
but remember the great and important atfain, _
concemine tlie safely both of State and Reli.
gion, declared first from his mnjesly's own
mouth, to ha the causes of tlie assembling of
this parliament ; tlie sense wherenf, as it dolb
daily increase with his majesty, so it ought to
do, and his majestv dnubts not but il doth so
with you, since ilie dsngrr increaselli every
dny, both hy effluxion of time, and preparations
Yet his majesty doth well weit^li, ihnC this
expeoce of time hath been occa^oued -ly the
Debate which hath arisen in both houses touch-
ing the Liberty of the Subject; in which, as
bis majesty lakes in guod part the purpose and
intent iiflhehouses.so clearly Olid frequently pro-
fessed, that they would not diminish or blemish
his roval and just pren^live, so he presumes',
that ye willairconlessita point of extraordinary
Kfoce and justice in him, lo suder it to rest so
long In dispute witliout interruption. But now
his majesty consideringth* length of time whicb
hour and minute is so precious : and foreseeing
that tbe ordinary way of debate, tboo^ never
so GwefuUy hu»t>anded, must, ic reganl ^{ the
167] £TATETRIAI£, sChakluI. ims.
Gentlemen of the Hoiue □rCammoDS; The
tervice of tlie king and safety of the kingdom
do coll on us, my lords, to give all convenieul
exwdition, to digpalch some i>f these greiit and
weishtj busiaesses before us. For the betier
ellecting wbereaf, mjr lord) have ihoifght fit lo
lei yuu know, that they do In general agree
with you, and 4oubt not, but you will o^e
niih us, to the best of your power, to maintaifl
and support the rundaineatal lawt of the kiii<;-
dum, and the fundameutil Uberties of ilie
Subject: for ihe parricular* which may here-
after fall in debate, they have given me in
cliarge ti.Iet you know. That what hath been
£ resented by you uuto their lordships, they
JVC laid Qothine ofit by, they are uot out of
love with any ihiug tliot you have tendered
unto them ; they haie voted nothing, neither
are they in love with any thing proceeding from
themselresi for that which we shall siyaiid
protHKe unto you, is out of an intendment to
iDvite you to a mutual and free cunfereuce,
that you with contiilence may come to ui, and
vre with confidence may speak with you ; aa
that we may couie to a conclusion of those
things, which we bolli ununimously desire. We
hikve resolved of noihioi;, designed or deter-
loined nolliing, but desire to take you witii us,
praying help from you as you have done from
us. — My lords have thought of some Propoii-
tiont, which ttiey have ordered to be read here,
Uid then left with you in writiuK, thatif itseem
good to you, we may unifbrroly concur for the
substance ; and if you difier, tliat you would
be pleased to put out, aild, alter, or diminish,
as you shalL thiuk fit, th^ so we may cutoe ibe
belter to the end tlmt we do both so desirously
emhtace.
Then the fire Profositidns followint; were
read by the Clerk of the Upper House.
1. " That bis maieity would be pleased gra-
ciously lo dectaie. That the good old law called
Mwna Charta, and the lix statutes couceived
to be decUrations and explanations of that
U«, do still stand in force to all intents and
purposes.
3. " That his majpsty would be pleased gra-
ciously to declare, Th^ acdording to Magna
Charta, aod tiie statutes afore-named, as
also according t<i the most antieni customs and
laws of tbis land, every free subject of this
realm hathaAindamentalPropnetyin bis Goods,
and a fundamental Liberty of his ['eraun,
3. " That his mnjesty would be graciously
pleased ID declare. That it ii hit royal pleasure
to ratify and confirtn unto all and every his
loyal and ftithful subjects, all their ancient,
several, juM Liberties, Priiilegcs, and nights, in
as ample and beneficial manner, to all mtents
Mid purposes, as their ancestors did enjoy the
tame, under the government of the best of his
most noble projgeoitors.
4. " Ttqit liis majesty would be pleased gra-
(nously to declare, lor the good content of his
. — Proceedifg» m ParUmmau nlatmg to [1G6
zance of the common law concerning ilic Li-
berties of the Subject, his majesty would pro-
ceed according to tlie common-law of this land,
nad according to the laws esiubli^hed in ilio
kingdom, and in no other manner or wise.
5. " Aa touching his majesty'i royal Prero-
gative, iiitriniicul to his sovereignity, and iu-
trusied him withal from God,. ' ad cummuuFm
' totiu3p<ipu1isalutem,etnoaaddcstructionein;'
his majesty would risoive nut to use or diteit
thesamr, to the prejudice of any of his loyal
people, io the propriety of their goods, or
Tiberty of their peisons ; and in case, for
the security of tiii majesty's royal person,
the common safety of liis peufile, or iba
peaceable governmunt of tiiis kingdom, bit
majesty shaU find just cause for reasuu of state
to imprison or restrain any raan's person, bia
majesty 1^'ould gracioukly declare, 1 tint wiihin
a convenient time lie thall, and will express ibe
cause of the commitment or restraint, either
general or special; and upon a cnuse lo e>-
pressed will leave him immediately lo be triad
according to the common justice of ibe kiag>
After the rtading of tlie Propositions, the Arcb-
This ii hut a model lo be added unto, altei«d,
or diminished, as in your reasons and wisdoin*
ye shall think fit, ^fteryc have commonicaled
the same to tlie rest of the members of tb«
To thn Speech, Sir Dcdlev Diocs, it being xt
a Free Conference in behalf of theCum-
mons, made this Keply;
My lords; it hath pleased Almighty God
many ways to bless the knights, citizens asd
buigesscs, now assembled in parliament, with
great comfort, and strong hopes, that this will
prove as happy a parliament as eter was in
England. And in their consultations for the
service of bis majesty, and the safely of this
kingdom, our special comfort and strong hopes
have risen from ths continued good respect,
which your lordsh^s so nobly liave been pleased
to sheiv unto them ; particularly at this present,
in yoar ■» honourable profession to agree with
them io general, in,ilesiring to maintain and
support the fiindamental laws and libertief
ofGngland.
The commons hate commanded me in like
sort, to assure your lordships tliey have been,
•re, and will be, ai ready to propu^n the just
Prerogative of his majesty, of nhich in all ibeir
Arguments, Searches of Records, and Besolu-
tions, Ihey have been most carefiil, according
to that which formerly was, and bow again H,
protested by them.
Another noUe argument of your honounble
disposition towards tbein is expressed in this,
Hiat you are pleaaed tu expect no present an-
swer from tbeui, wbo are (as your lordshipa in
your great wisdoms, they doubt not, have coa>
sidered) a l^eat body, tint must advise upon all
Mw Piopnuiioiu, and resolte upon tbeu be-
169]
STATE TBIAIS. 3 Charles I. 1628.— ifte LUxrtf qfilu Sufy'^ct.
[ITO
bit ihej can dre uuwer, according to the
ucient onler nf their house. But it a mnnileit
m geoeial, God be tlmnked for it, there is a
|mt concurrence of ■ITi'ctioii to the same end
a bolii bou>e«, aod sucli gnoi) harmoiiy , that I
ncreat yom lurdsliips leuie to borrow a coin-
jamoo Irom nature, or natural jiliilowph^ :
di two lutei HeJl simag uid tuned bruughi lo-
jtlho', if one be pLijed on, litile ilrnvii nnd
BicbwilJ 9iir upon [lie other, though it lie Mill;
SI [hough we hrive no power to reply, jeX the>e
things laid and propounded cnnnot but work in
lor hearU, and we will fuithfuUy report these
puugts to our house, from wheuce in due time
(■e hope) jour lurdabipi shall receive a cou-
tcQlful Buswer.
Hr. Seldeh's Speech, about the live Proposi-
tianiseni from Ihc Lords to the House of
Communs, April iO, 1693.
Out debate 1) now, hon we like of the Pro-
pwtion^. Ours were resolutions of law, nnij
MDtn can make question of them. And as
■e are coiistuiit, so I hope thej of other phtcet
ibat have neigbed them, are of the lame luind
■ilh us. But DOW (heii lurdsliips lajine them
bj, propound wliat ihcj would have to be law.
Ailbej maj speak to vthat cotuei frnin us, so
a»j we to what cornea from them, and the; did
iDnie OS thereto. I think there is nut one of
iIk firs fit to be desired and asked. The first
Ikree are not fit, for there is no use of them in
lime great queatioiu. The fourth we have
lirtadj, and the llt'cli is not lit ti> be had at all.
Tbefnt 'a, to declare that Magna Chula and
li»iii (laCutea, conceived to be declarations
mil eiplaoatiuuE of that law, do iiill stand in
firce to all intents and purposes. Consider
*bt it is we Bsk : Who doubts whether the;
naaduilbrceor no? Indeed some have puli-
bhrd that Magna Charta is but a charter and
Mlaw. But it ii an act of parliament ; and
kt ncD apeak vrhat die; wdi, that vras tde
MioD of itBtates till printing came in. The
Mnuet were sent duno in IM king's name to
WiirocUimed, and he prefixed his name, and
ihii was till about Hen. 6. Alho the bod; of
Htpn Charta is, that it ii contented to b;
•U (he earls, &c and for the assent there
■u a fifteenth graaied, and clear!; thut
nuwt be without an act of parlinment: and
10 coDiunt it is, that all ebe in it is to this
^;p«t in execution. Id former parliaments,
ij Aiity at Icatl, it was comfirmed, hut it
ni not of-oecessitj, and jet the; are surer
iW this declaration jau will now add. For
i^HCond, that his majest; will declnre that
t<er;iub|ect hath a Propriet; in his gooils,
*h1 lihen; ,of his person ; the; that drew tbis
Mi^ mean somewhat more than I understand :
1 know DO! what we gain. Who doubiit of our
tnfiktj I I never heard it denied, but in the
palpit, which ii of uo weiitht. For the third,
Ihu bis m^ew; will confirm aU Just liberties ;
■We caa lell what this will produce. It ia not
h we tronble Lis majesR with it. The fourth
••KtfittobeBtkcd; Tbu in all cases within
the cognizance of the Common Law concern-
lug the Liberties of his subjects, bis majcstj
would proceed Hccording to [lie Common Law.
I conceive hiB niajest; never proceeded hul ac-
cording to law. itmu; be there werecnmini&-
ments, yet tlie cDufts uf justice were opeo for
the parties tJ seek juuice. And if an^r thinj
be done against the uw, there, it is the tault of
them thatiit there. So we shall take it. But;et
his majes^r hnth done nothing ngniust the law.
For [he fifth, it is nut fit to be hud, and tliere-
fore Dot fit to be sskcd. If we ask it parlia-
mentarily, we shall have a law [o that sense,
and so we shall destro; our fundametital liber-
ties, which we have alreiuJ; resolved. Now a
■ convenient lime' must be set down. In
former times tiiere was uo need of such inno-
vations; for such law of BLa[e, in a ' conve-
nient time' e\'er; man was to be delivered by
law. If they were so wise then to fcold it
needless, wb; is it now necessary ? Aod for
' convenient time ;' » hat Is convenient time t
Who shall judge of it but the Judges? Aad
BO ihey now shall have the power ol the lords,
and ol Che oiuncil. Also now we desire in
some cases ihd prerogative, &c. I would fain
see if an; person ma; not becommitted nc plca-
isure by this clause, and no man is exempted.
At this litile gap' ever; man's liberty tnaj in
7'he Cuinmons were nut saciificd with thesa
Proposi lions, which were conceived to citoalc
tbe PctiiKiu 9r night, then under consideration,
but demurred upon tl>eiu.
Monday, 38 April. The Lord Kccfer spake
. to both Houses of Parliament b; the King's
Command, who was then pretent.
M; Lord*, and ;e (be kn^hts, citizens, and
burgesses of the House of Commons, ye cannot
but remember the great and important alTair*,
concerning [he safety both of State and Reli- '
gion, declared first from his mnjetl;'* own
mouth, to ba the causes of the assemhlins of
this parliament ; ilie sense whereof, as it doth
dailj increase with his majesty, so it ought to
do, and his majeatv doubts not but it doth so
with you, since the dsngfr increasetb every
day, lioth by effluiinn of time, and preparations
of the enemy.
Yet bia majesty doth well weinh, that thi*
expence of lime haih been occuluued jy the
Debate which hath arisen in both houses Coucli-
ing the Liberty of the Subject; in which, as
his majesty takes in good pari the purpose ami
intent iifthe ho uses.so clearly and frequently pro-
fessed, that they would not diminish or blemish
his royal nnd just prerogative, so he presumes',
that )e will bII cunlessic a point of extraordinary
Krace andjusiice ih him, to suSer it to rest to
long in dispute witliout intemipliun. But now
his majesty conuderingthelengih of time which
it hatli already taken, and fearing nolhing SO
much as any future loss of tliat, « hereof every
hour and minute i^ so precious : and foreseeing
that tbe ordinarv way of debate, thoagh never
H carefully husbanded, must, in regard yf ihs
171] STATE TRIALS, SCuaklesL 16^8.
form of both Iiouses, neceuariW take more
lime than the affairs of Chriitendom can pei^
■Dit ; his mnjest?, out of liis great princely care,
h»t1i thought of ttiia expedient to Ehott«n tlie
business, bj dectoring tbe clearness of his own
heart iind intention i and therefore liaCb com-
iDAnded me to let your know, 'That he holdelh
' the Statute of Magna Charta, and tlie other
' six Statutes insiaud upon for the Subject's
'Liberty, to be nil in force, and assuva you,
' thai he will mni^tain all bis Subjects in the
'just Freedom of.th«r PersoDi, and Safety of
' their Estates : and that he will goTern accoid-
* itij[ 10 -die laws and statutes of this realm;
' and that ye shall find as much Security in his
' nmjesty's royal word and promise, as in the
' strength of any law ye can make ; so that
• hereafter yc shall never have cause to com-
'plain.' The conclusion is. That bis majesty
pniyeth God, who hath hitherto blessed this
kiiigtfam, aad put into his heart to come to you
this day, 10 make the success thereof happy,
both to king and penple; and cherefuro ho de-
sires, diat no doubt or distrust may possess any
man, but that ye will all proceed speedily and
unanimously to the business.
The Commons beina returned from the lords
house, Mr. Secretnry Cook pe.-suaded them to
cbmply nitb the king. .
His majesty, said he, puts us in mind of the
great important affain of the state, and of lit*
sense thereof, that by effluxion of lime in-
crNUjeth in him, and he doubts not hut that
it doth increase in us. Ye see his majesty's
moderation ip ihs interpretation of all our ac-
tions; besajth, that he tiopes wo have the same
sense h« hath, lie is pleased to cniisider of the
occasion of eipenfe of lime that grew from the
Debates in both houses. We see how indul-
fent he is, that however the affairs ofChritiea-
dom are great, yet he otnita not this, nay, he
cakes in good part our Proceeding and ouj
Declarations, that we will not impeach the
FrertKutive: also his miijfesty presumes, that
we will confess, that he hath uted eitroordi-
nary grace, in that he hath endured dispute
■o long, be ackoowledgeth it justice to stand
as we have dune. '
Further out of a princely care of the public,
he is careful no more lima be lost ; and be-
cause he sees same -eiCraordi nary cntirae to be
taken to satisfy us, he observes, tliat in the
form of the debatr, such length is re<]uired as
the nature of the business will not endure. It
is to be presumed, that his goremment will be
according'to the law : ne cannot hut remember
what his father said, ■ He is no king,butaty-
' nuit, that governs not by law :' but this king-
<lom is to be governed by the Common Law,
and his mtytstf assures us so much ; the intei^
nretution is left to the Judges, and to bia great
Council, and all is to be regulated by the com-
mon law. I mean not Magna Charta only, for
that Magna Charts wai pait of the common
law, and (be ancient law of this kingdom ; all
our differCDce is in the applicUion of this law,
•ltd how ibis Uw, with uifferenc*) it derived
, — Praxedmgt in I'arliamau relating to [17%
into ever; court. I conceive there are two
rules, the one of brais, that is rigid, and will *
not bend, and that is the law of the KingV
Bench, this law will not bend ; and when it
lights on subjects fitting, if it do not bend, it is
unjust ; and there comrs in the Law of Chan-
cery and equity ; this is applicutioD of law in
private men's causes, when it comes to maim
et luum. And tbui the general governmentnf
rases, with relation lo the common stat^ of the
kingdom, is from the Council-board, and there
tlvy are to very from the law of the kingtloni ;
suppose it be in time of dearth, propriety of
goods may in ihnt time be forced, and be
brought to the roatket : we saw the eijierience
of it in coals in London, and the Council- Botird
' caused them to be brought forth and sold. In
a time of Pestilence men may be restrained :
if a schism be like to grow in a Church, the
State will enijuire after the fevoure™ of it :
if tliere be fear of an Invasion, and it be en-
couruged by hope of a party among us, it is in
the pnwer of the government to restrain men
to their houses.
In the composure of these things, there i*
great diffi^rence: wltat differences have been
etwceu the caurtt of Chancery and King's-
Bench f It is hard to put true rlifference be-
tween the king's PrerogRlive and our Liberties,
His mnjesty saw eipeiice of timi; would be
prpjudicial ; it pleased God to move bis jnaa
jesty by a divine hand lo shew us a way to
clear all our difficulties, let us attend to nil
the para of it ; there be five degrees, and there
is more assurance than we could have by any
law whatsoever. His majesty declares, that
Magna Ghana and the other Statutes ate in
force ; this is not the first lime that the Liberty
of tlie Subject was inlringed, or was in debate
imd confirmed ; all limes ihtiught it safe, that
when they casie lo a negnti»e of pnwer, it wbi
hard to keep government and liberty togetber:
hut his majesty stooped not there ; but accord^
ingtolbesenseortheseUw<i, that he will gorem
his subjects in their just Liberties, he assure*
us oiir liberties are just, tliey are not of grace,
but of right ; nay, he assurer us, be will govern
us according to ibelavis of the realm, and that .
we shall lii^ as much security in his majesty*!
promise, as in any law we cop make, and whn^■
8oe\'er law we shall make, it must come to his
m^GSt^'s nlkiwnnce; and if his majesty find
cause in hts government, he may not put life to
It: we daily see all laws arc broken, nod all
laws will be broke for the public gond, and the
king may pardon all offenders ; his majesty did
see, that tne best way to settle all at unity, i*
to express his own heart : the king's heart )•
the best gulder of hit own promise, his promise
is bound with his own heart. What prince can
express more care and wisdom f
Lastly, be saith, ThatKereafteryeshallneTer
have the like causa to complain : may we not
think the Breach is made uuF Is not his ma-
Jestv engaged in his royal word ? The conctosion
IS lllll of weight 1 and he prays God, that as
God hath blessed thii kiogdiun, and put it intn
ITS] ETTATE TRIALS, 3 Cmablm I. ieHB.—tbe Liberty qf the Si^at.
[174
bit beut to rone •mong^t us, m to make this
da; Kiccesslul. ' Tbewretliofa biogia likelho
' nnring of a lioo,' and ill Uws with bis wrath
■re to no eSecC ; but ' the kini-'i fmVour n like
'tluilewupan the grass,' tbece nil will prosper;
uil God lo&de the iiutruineiits to unite all
ttam. Hia nrnjesi; having thus dischnrged
tiiniMlf, heprajrs ui to proceed 10 llie business
liiatia modi coocems him. /r. his mnjestjr
liili now shewed biinsclf the hn( of kin|s, let
gj leknooledce his msjesty'ii goodness, and rc-
Utd tu tLai UuioD which we all desire.
Bat this mo^njvBs not received with gene-
nt Bcceptaiion ; and
Sir Benjamin Sudyard replied to it i .
We m now upon a great Business, and ihe
nanntr o{ bendliiig it uikj be as great hs the
Wsinna itself. I need not lell jou, that Li-
batj is a precious thiog, frir every inun may
Kt i'u mtn price upon it,' stid he that dotli not
(aJtie it deserves to be valued accoTdiugly.
For my own part, I am clear without scruple,
thai wbat.ne Dave resolved, is according lo the
lav; and if any Judge in England were of a
caDlniy ouinioD, I am sure we should hare
beard of bun ere now. Wiihouc all question,
tbe rerypoiut, scope, and drift of M^gua Charts
>u, (0 reduce the regal toa.l(gnl power, in
natwr of ImprboDiDCDt, or else it had not
beta worthy so much contending for.
Bat there have been Precedents brought to
ptere the practice and interpretation of the
in. I confers I have heard many Precedents
if utility and respect, but none at all of truth,
AT of law ; certainly there is no contt of justice
b En^and, tbnt wiU discharge a prisoner coin-
nilted by the king, regt inamnllo, without
tcqiwiting the king; yei this good manners
was nerer maile, or mentioned D3 a legal part
of tlie delivery, ,
It b objected, That the king ought to have
ttiBi left and deposited in him : God forbid hi
ke should : anif I sny, that it is impossible t
lake it irocn him, far it Ues not in the wit of
msn to devise such a law as should be abli
cam[irehend all particulars, all accidents,
tliat exmordinary cases mii^t happen, whi
■ben they cotne, if they he disposed of for the
cnsmoii good, there will be no law againdt
tkna, yet must the law be general, for othei-
>ise admisnoils and exception* will frei, and
est oat the law to nothing. God himself has
mutituted a general law of nalore, to gnvei
the ordinary course of things, he hath made r
hnfor mirudes; yet there i» this observation
cf them, that they ore rather ' pneter naturam',*
than' coutra naruram,' aud always' propter bo-
'dos fines:' fur king's Prerogatives, arc ratliei
IwDcles the law, thaa against it ; and when thei
are directed to right ends for the public good,
(Ik^ are not only concurrlnt; laws, but even
lai in angularity and excrllency.
But (o come nearer, Mr. Speaker, let a:
OMHler where we are now, what steps we iiavi
■He and puned ; the kii^^i learned Counsel
have acknowledged all ih^ laws to be still in
force: the Judges have not allowed any judg-
ment againtt these laws : the Lords also have
confessed, that ihe laws are in full strengtli;
they have further retained our Resolutioiu en-
tire, and without prejudice.
All thia hitherti) is for our ailvantage; but
above alt,hls majesty has this day, himself being
Eublicly present, declared by the niuuth of the
ord-Keeuer, before both the houses, That
Magna Cbarta, and the other six Statutes, are
still in force ; that he will maintain his subject*
the Liberties of their Persons, and Proper-
ties of their Goods : that he will govern them
according to the Laws of ihc kingdoni; this Js
a solemn and binding satis&ction, expressing
his gracious readiness to comiily with his people
in ^1 their 'reasonable and just desires. 'The
king is a eood joon, and it is no diminution to
- king to lie called so; for whosoever is a good
an, shall be greater than a king that ia not
I. The king certainiv is very tender of hia,
present honour, and of his fnrae hereafter : he
will think it hard to linvo a worse mark set
upon his government than upon aity of his an-
cestors, by exlraordioary restraints; his ma-
jesty hath already iniimaled unto us by a mes*
sage, That he doth willingly give way to have
the abuse of power reformed. By which I do
verily believe, that he doth very well under-
stand what a miserable power it is, which hatli
produced ao much weakness to himself, and to
the kingdom; and-it is our happiness, that be is
BO ready to redress it.
For my own part, I shdl be very glad to see
thnt good old decrepid law of Magna Chnrta,
which hath been kept so long, and lain bed-rij
as it were; 1 shall be glad to see it walk abroad
again with new vi$(Our and lustre, attended and
followed with the other six Statutes : question-
less it will be a great heartening tu all (he peo-
ple. I doubt not, but upon a deCatiog Con-
ference with tlie Lord), we shall happily fait
upon n (iiir and lit a
in the point, against imprisonment for Loan*
or Privy-Senls. As for inlriruical power and
reason of state, they are matters in tfie clouda,
where I desire we m*y leave ihem, and not
meddle with them at all: lest by the way of
admittance, we may lose somewhat of that
which is our own already. Yet this by the
waj I will say of Renson of State, That, lu tho
latitude by which it is used, it bnlh eaten out
almostj UDt only the laws, but all the religion
of Christendom. ^
Now, Mr. Speaker, I will only remember you
of one precept, and that of llie wisest man ;
' Be-nat over wise, be not over just i' wid he
gives this reason, ' for why wilt thou be deso-
late V — Sir, if justice and wisdom may be
stretched, to desolation, let us thereby learn^
that moderation is the virtue j>f virtues, and the
wisdom of wisdoms. Let it beourmasier-piece
so to carry our business,- that we may keep par-
liafnents on foot : furasioogas they metre-
175] STATE TRIALS, SChablesI. J 62
«]uent, iliere Will be no irregular power; which
thMugh it cannot be bmkeii at onc«, yet iii sliort
time it nil) ttide mid moulder ^wn; : there ciin
be li» totnl or final loss or Liberties, but by
loss of Porliiimeiits, As long u tliey last,
what we cannot get at one time, we nmj have
Bt another. — Le» n^i man tliink, that what I
have snid is the lahf^uBKe of a (jrivate end, my
aim is upmi the giwd sudleiis at the whole; for,
I Ihaiik Uod,my mind standsabove any fortune
that is to he got by base nnd nnworthj means :
no man is beund to be rich or great, no, nor tn
be wisL' ; but evL-ry man b bound to be honest,
cut of which heart I hate spoken.
April, 1020.
Gen lie men ; For God's take be wbe in your
will-Hwant leal : why du yoy ai^ue away pre-
cious time that caa never be revoked, or re-
£ aired f Woe is me! while we dispute, our
icudsperiiliiaudwemust Tollow them. \Vhere
■re we, if we bieok ; aad (I tremble to think)
we cannot but break, if we hold so stiff. Oar
liberties and Prapriedct are sudicieatly declared
to be sure and legal, our Remedies are clear
and irrefragable ; what do we fear, every sub-
ject sees the way now chalked out for future
luMice, and who dares benceforlh tread besides
It? Certnitily whilst Parliaments live, we need
not mis-doubt tho violations uf our Freedoms
Mid Rights ; miy we be but where the inw
found U5, we shall sufficiently enjoy ourselves
and oorsi it is no season to search for more !
O let us not, whilst w* over-rigidly plead (or an
fii'her strain of safety, put ourselves into a ne-
CL'^ity of ruinand uiter despair of redress: let
us not, in the suspicion of evils that may be,
' cast ourselves into a present confusion. If you
love yourselves and your country, remit some-
ihingofyourown terms; and »nce the substance
is yielded by your noble patriots, stand not too
rigorously upon points of circumstance ; fear
not to trust a good kin;, whn, ailer Che strict
laws made, must be trusted with the execution.
Think that your country, nay Christendom, lies
on the mercy of your present resolutions. Re-
lent, or farewel welfare. From him whose faith-
ful heart bleeds in « vowed sacrifice for his king
' and country, Exeteb.
Upon this Debate it was ordered. That •
Committee of Lawyers do ilraw a Bill, coiitBin-
ittg the substance of Mngna Charta, and ihe
other Statutes, that do concern the Liberty of
the Subject; which buiiness took up two whole
days.
Mr. Seldbn's Splecb at ihe Comniiuee about
the Bill fur Mi^iia Charta, and the Liber-
ties of the Subject. April 38, 1698.
I would have the violation tenderly mention-
ed. Let us set down the Statute of Magna
Charta. 13 Hen. 4, it is adjudged in the Pfti^
liament Roll, that the Statute of Tnllaae is an
Act of Parliament. It is not entered in the
Statute Roll, ud it wu 34 Ed. 1. 19 Ed. »,
.—Procetding) m Pariiamaa nUning to [\16
rot, cUus. mem. 15. ' Les coraens priont Jou
' divers fuer' prise et imnrison per Bccttscment
' depersons malevolent Ion ne filer' indict ace'
' al ley del terre, ils priotit que lis qne sont
' prise sans indictment veignont en Chancery,
' et que droit serra fait, Et roy vtilt que nuj
■ serra prise.' But this is not in the Parliament
Rolls Ed. S, c. 9. l*Ed. 3,c. 1,'thatlliere
' shall be no kid nor charge but hy Parliament.'
Q5Ed. 3, c. 4. 'None shall be attached by pe-
' titioii without presentment, or an original writ.'
25 Ed. S, no, 16. < Item, priont les comeiit
* que les loans soient release, et null serrn com-
' pell de Rtire arrere encontre les franchises del
' terre. Le roy le pie st." 28 Ed. 3, e. 3. ' Nul .
' serra unsie de lerre ou tenements sans due
' proe'es del ley." 3Ci£.3,no.9. 'QQelegrund
' Charter serra duly observe, et null serra im-
' prison sur special command,' 36 Ed. 3, no.
30. ' Que nul serra imprison per spectnt com-
' mniid.' 30 E. 3, no. 34. <Si BM^un hoinesoit
' Brieve contre lis articles, avanl dit veigne en
' Chancery et droit serra fait.' 87 Ed. 3, no. 10.
' lis la desire que le grand Charter et especlal-
37 Ed. 3, c. IB. ' II est cnnteine en le grand
' Charter que nul setra imprison, ttc. ils que
' font tiel. Sec' 38 Ed. 3, no. 10. ' Les comens
' priont que le grand Charter et les autres Bta- >
' tuts toient execute at que breves serront
' grauntez al cesluy que sue pur ceo, et li ascun
' Judgment soit fait, il serra void.'
I'hiLTsda; the Islof May,Mr.SecretaryCook
delivered a Message &om his majesty, vii. to
know whether the house will rest ou his Royal
Word, or no, declared to then by the Lord
Keeper; which if they do, be assures them It
shalJ be royally performed.
Upon tliis there was a silence for a ftood
space I then<Mr. Secretary Cook proceeded:
This silence invites me to a further speech, and
further to address myself; now we see we must
grow towards an issue. For my part, how con-
fident I have been of the good issue af tliitpar-
Unment, I have certified in this place, and ebe-
vrhere, and I am still confident therein ; I knnir
his majesty is resolved to do as much as evtr
king did nir bis sabjects : all thit debate halh
Srown out of a sense of our sufferings, and «
esire to make up again those breaches that
have been made.
Since this parliament begun, hath there been
any dispense made of that which hath tbrmerly
been done P When means were denied bis n)n<.
jestj, being a yonng king, and newly come to
his crown, which he found engaged in a war,
what could we expect in such necessities? His
m^estj called this parliament to make up the
breach : his majesty assures us we shall, not
have the lily cause to complain ; he assures,
the laws sbnll be established, what can we
desire mare; all is, that we provide for pns-
teriiv, and tliBt we do prevent the like snBering
for the future. ' Were not the »«me means pro-
vided bv them betbru us? Can we do morc^
We are' come to the Liberty of the Subject*,
in]
STATE TRIALS, S Charles I.
■ad tbc ProtigMlte oT the King; I hope we
■hiU not add any thing u> ourselves, to depreu .
iHm. 1 vill not dinae, I think ne iliall find
didia]lt}> with the king or triih the lords; I
■bill not deliver my opinion u a couniellor to
hi) nujestj, wbicb I will not juMifjr and say
here, or it the Council-hoHrd. Will we in this
DKciitif girive to bring ourselves into & better
condition and greater liberty thnn our fhlhi'M
W, and the crown into 'a worae than ever? I
dare Bot adviie his majeaty to admit of that :
If thb that we now desire be no innovation, it
isallconlained in tboie actaand statutes; and
vbatwever else we would add more, isadiiniiiu-
tiea to the kind's power, and nn additlun to
our own. We detU with a wise and prudent
priiie^ that hath a iword in hia hand for our
|Dod, and chia t;ood is supported bj power.
Do not think, diat by cases of law and debate
tn can make ihat not to be law, which in ex-
jmience we every day find ncccisarj,— Give
me leave fnely to tell yon, that 1 know by et-
peneace, ihat by tht place I hold under his
majesiy, if I will diachnree the dutyofrny place
and the oath I have taken [o his mnjesty, I
most commit,. and neiiher express the cnuse to
tlie poler, nor to the judgm, nor to any cuiin-
•ellor in England, but to the king himself; yet
do not think I go without ground of reason, or
laka this power coEmnitted to me to be un-
tiniiedj yea, rather it ia to me n chaj^e, bur-
Ibec, and danger : for if I by this pofi er shall
conunit the poorest porter, it [ do it nnt upon
ijostcnow, if it may appear, the burthen will
fall upon me heavier than the law can Inflict,'
fori shall lose mj credit with his majesty, and
■>y place. And I beseech you consider whe-
ther diaae thai have been in llie aame place have
not committed freely, and not any doubt made
of it, nnrany complaiDt made by the subject.
Sir Ratert Fhiilipt hereupon &pake thu):
That if the acords of kings strike impressions in
the hearts of subjects, then do these words upon
this aceasion strike an impression in the hearts
afusall: to ^eak in ■ plain langaage, we are
mm come to the end ot our journey, and the
*etl disposing of an Answer to this Mfa&age, will
pre happiness or misery to this kingdom. Let
' M Mtthe commonwealth of England before the
tjt% iif hii mnjesty, that ve may justify onr-
wlies, ibat wehave demeaoed ourseli '
*lh to his majesty.
Br. Hat; '■ ''
HacluctU of Lincoln's-Inn, 1 May, 1628,
Sir; I cboae ntlier to diicorer my weakness
ki ifieaklng, than to betray my conscience b^
uienee: my opinion is, that we shall dowel
totally to omit nur Resolution nut of this Bill
tad rely only span a conlirmatinn of the laws
The Objections mude a^inst this opinioi
■re two. The first is, that we sliatl thertby
Rcede fram our own Reiolution.
'fbe second, that by a biire confirmation oi
ibeold laws, without inserting nfonr Resolution,
by way of eiplanatino, we shall be but in tlie
For tbe fitit, thM though we detire only a
1(323.— **e Liberii/ qftke SubjKt. [ITS
confirmation without addini; of our Resolution,
do not thereby recede from our Resolution,
:asoD thu) : Our [tj»olution was drawn out
LhescnseoftliosebwSjWhich are now desired
be confirmed, S'> that no questinn can be
made by any of us thai have tlms ileclared our-
selves, but that our Ecsn lotion is virtually con-
tained in the^c laws. If ihat be so, how can
acceptance of a confirmation of these laws ■
be a departure from our Eesolntion f — Nay, ra-
ther we think the contmry is true; he tiuit
doubt!!, that by coufinnntiori of these laws our
Resolution is lint hervhy confirmed, d<iuhls wbe-
ther we have justly deiluced nor Hesolutioiis oirt
of those laws, nrtd so calls our Resolution) into
(jueitiun, — This argument alimc is. in my opi-
on, ft full answer to that first Uhjcction, that
desiring a bnte ronlirmntinn of those laws,
r depart from our Rr solutions.
The second OUJeciiiin is, that if we have
nothing but a cnnNnn-.tiun we are In no better
case than wc were I (lore th'<¥e late tirdatiuns
of the law. This I deny, and do confidently
1, that although vcc hnve no mure than a
rtnation of tliose Inns wbi< h arc recited in
the bill that is now before us, vve shall depart
hence in far hetlir cnte than we CMme, and
in divers respects.
Some of the laws recited in this Bill, aqd
desired to be confirmed, are not printed laves,
nd are known to few professors of the law,
nd much lets to others, and, yet thev ars
iws of as great ennsfqucnee for the , J.ibtrty
of the Sutjecf, if not of greater, tbaa any
that are printed: as namely 35 I'^iv. 3, no.
1. ' That Loans agiiin^t t^e w ill of the lender
are agniu^t reason and the freedom of the
realm.' 36 F.d. 3, no. 9, by which Imprisoti-
ments by spcrial commandment without due
process are forbidden. - These two are not
printed.— That excellent law De Tallegio aoa
corKtdcndo in prim, hath in a public court been
by a ([rest counsdldr said lo be bui a Clinner,
and no law.— :The statute 1 Rich. 3, apinst
Benevolenctvis ^'S some opinions in prmt an
absolute law. If we can get all these good
laws, besides those six other, which are ex-
positions of Mai?na Charta, in the point of the
freedom of our persons, to be confirmed and
put in one law, to the easy view of all men, ia
not our case far better than wbcn we caine
hither?
3. Will not the occasion of the maliug of
this law of confirmation, so uiitorioualy known,
be transmitted to all posterity? Cettaitily it
will never be forgotten, that the occasion there-
of was the imprisonment of those loriliy Gen-
tlemen for not lending, and the Resolution in
the Ki»t'i-Beneh in denying to bail them ; and
is not tfie occasion of the making of a law a
good rule f) expound it? If so, then by giving
a contirmHtion upon this occasion, wc have
beitereri our case very much.
3. Have not the Jutlges in the King's- Bench,
in open parlinment, upon out complaint, dis-
claime.l io linve given any Jud!;ment in tin
poiat ? Which generally belprc by the pnrlia-
ITJ] VTATE TRIALS, sC^UlesI. l6(iB,—Proctedmgi in PurliaaKiiH^Mtiag Io [IcO
And 10 ttie d>j fbUowinfi tiiey had &nh9f
ineot waa otlienvise coateived^ for now the*
saj.iiwMbuinD'Award and no Judgment, will
luch B DoiorioLU net upon so impuitant an oc-
casion in so public a place be quickly forgot-
ten ? Nay, vJill nol ihe memory of it for ever
remain upon record f Is not our ca&e then
much better then ivhf n we came hither ?
4. Will not ihe UemluCion of tliis home, and
nil our srsuments and reasons against impri-
ionment without a cnuse expressed (wliicli no
doubt by tbe course ite bate cuben uill be
transferred to postprity) be n great means to
nay any Judge hereafter from decUrlng or^
judgment lo the miiCiary, especially if there
De likelihoud of a pnrliaiuent i Is not our case
in this very much uneuded ?
Lastly, Have we noc received Propositioai
from the lunU, therein, amongst other tUngj,
they declared, that they are not out of love
with our proceedings? Is not lliis a ueat
strengthening to it? But after so lung, d^te
snioogst them about it, they cauiiot take any
just exception lo it; and dolh not this also
^uch amend our case ?
From all these reasons, I conclude that the
lecnnd Objection, that by a confirmation we
■re in no better case than when ne came toge-
ther, is also a weak ohjeclion.
Now for Reasons to move us to proceed in
this course of accepting o confirmation; ]. We
' have his majesty's gracious promise lo yield to
a, conlirniation of the old laws, fram which we
ID ny rest mo^t assured he will not depart; if
Ve tender him, withal, our Pniposicinn to be
eaacted, we have cause to doubt that we shall
lose both the one and the other. 3. We are
no less assured of the lords joining with us, for
in their propositious sent to us tJiey have deli-
Tered clieinselves to that purpose : this is then
B secure way of getting somewhat of great ad-
vantage to us ; as we have gi;eat hopes, and in
B manner ataurauce on this side ; so on the
other side we have great doubts and fears, that
by offering our Resolution to be enacted, we
shall lose all. — For first we have bad already
experience of the lords, tliat (hey are not very
forward to join with us in a declaration o( our
Proposition to be law ; if they stumble at a
declaration, much more will they, in yielding
to make a law in tbe tame point. And have
ue not much more cause to doubt that his ma-
jesty will not yield unto it, seeing It toucheth
him so near^ Is it nol tlit notice of his plea-
sure that hath wrnught ihuc with the lords 1
If we shoi^d clog out Rill with our Proposi-
tion, and it should be rnectcd by the lords, er
by the king, is not oar Resolution much weak-
ened by it; aiul are we not then in far worse
case than before we made it? OurResohition
for the rejecting of our Prupositioo, will tend
to a justification of alt tliat hath- been done
'against ui in this great point of our liberty.^—
Let us then, like wise men, confoim our desire
to our hope*, and guiilc our hopes by probabi-
lities; othet [lesircs and other liopes arc but
This ii my poor opinion iu thia weighty
debate upon that matter, the house being
turned into a Grand Commitiee, and Mr. Ucv-
beri in the chair. Some said that tbe Sulgect
has suQered more in the violation of ancient
Liberties within these &w jeal^ (ban in 300
yenis before, and therefi>re care ought to be
taken for the time to come.
Sir Xdaard Coke said, lliat that ' Royal
Word, had retcreuco to some Message (9r-
merly sent ; his majesty's word was, that tbey
may secure themselves any way, by bill or
otherwiEe, he promised to give way to it. An^
to (he end that this might not touch his oi^es-
ty's honour, it w'as proposed, (bat the Bill come
not from, the house, hut from the king: We
will awd grant fiir in and qui soccesson, and
that v-e and our successois will do thus and
thus ; and it is the king's honour, ha cannot
speak hut by record.
Others desiied the houM to consider, when
and where ttie late promise nas made ; ' was it
not in tlie face of both houses p Cruel Lia^
have been careful la perform their promise^
yen, though they have been unlawful, at
Herod. 'I^ierefore if we reat upiin his msjet-
ty's promise, we may assure ourselves of tbe
performance of it; besides, we bind his m*-
jesty, by relying on his word : we have laoa
enough, it is the eiecuiioo of them Iha^ is our
life, and it is the king that gives IjCe and exe>
Sir Thomat Wentaorth concluded the debate,
snyini;. That never house of parliament trusted
mnre in the goodness of their kio^ for their
own private aocouut, than tbe present; bat
we are ambitious that his msjasiy's goodBcw
may remain to posterity, and we an accounta-
ble to a pubUc trust i oad therefore seeing
there hath been a public violation of tbe law*
by his ministers, nothing will aetitfy bim but &
public amends ; and aur detirit ia vindicate
the Subjects Right liy Bill, are no more tbaa
ore laid down in former laws, with some modest.
provision for instructiau, pertbnoauce aud exe-
Which so well agreed with the sense of th«
house, that they made it the lul^iect of a Mes-
sage to ba delivered by tbe Speaker to bis ma-
jesty.
Amidst those deliberatioas, aootber Me»-
sage was dalivered May 9, Irom his uugcs^, hy
Mr. Secretary CnoL ; " That hnwsoev^ w«
proceed in this business we have in hand,
which his majesty will not doubt, but to be lu-
cording to our constant profin^ion, and so as bs
may have causa to give us tliai>ks ; yet his re-
solution is, that ^tb his royal core, and
hearty and lender affectioD towards all his lov-
ing Euhjccrs, shall appear to the whole king-
dom, and alt ihe world, that he will govero ua
according lo the laws aad castoms of thia
'm ; that he will maintain us in the ijb«r-
of out Persons, and Proprieties of gur
Goods, so as we may enjoy as much happineu
lie fotr&tlKn m tMU hast tima^i jmM
mj
STATU TRIALS, 3 Cmakleb I. l«U3.~t&e Libet^ ^tlt Sdyeel,
n»
&*l ha will naitj nbat Imlh Ixrn, or maT be
fand ainiu lunoagK ui, u tli»t bermficr thet«
Mf bano jtuteaow h> contpUin. Wbercin
n ba M^eur oil! rank himieir ainoni^st ih«
bnt of aur kinp, and ikew lie bath no iiiten.
Don to invada or impeach our Uwrul liberties,
orrigbt; •• b* will have ua motch aurvcliel
with ihe bmt nibjecta, not hj ancmacliinfc
rEbat savcre^tj idcI prortigative, whicli
. haih put ioto his bandi for o»r tpai\, but
fcj canuiiitng oiir<elTe« within the bound* »nri
(twi of o4ir ropa-faihen, oithont reatraining
Aem, or enlarginf the<n bj new eipknation^
interpretation!, expotitioni, ur addiiiont in uaj
■art ; whiefa, br tctlMh at, he will not give wn^
«ato.— Hwt the vngbc of the affiin of the
kttgdvn, and Cfanitcndom, do pvete him
and raore, 4nd that the tioio i> now sroa
ihu point of matartty, that
Ing debate or ie\wy ; so as this cesaion of par-
fiuaeat niuM oontinue no longer thnn Tuesdny
CMM seveH-n>ebt at farthest: in which time
tisMJeUy, (or his part, will be rendy to per-
Arai what he promised ; nod if tli« house be
w« ra«d]F to ilo that i* fit far thaaulve', it
iWI be tlicir Q*n ranlts. — And upon aitur-
' ~ ir eood dispsAoh and oorroipondence,
w oKlaretli, that bii tojbI intention
ue •nother teasion of parliament at
HichaelnMs neat, ki the perfecting of luch
Ifcogi ae oaiinot now be done."
This MeasaM was debated the am daj, b»-
BfSatuidaj, Msj 3, wheraopoii
Sir JoIm Eiliol spake to itis effect : The
kia^ taith be, will rank hisDelf wlih the besl
ef bn^, aad therefore he would have u9 rtnk
mimImj with the beat subjects ; we will. not
iaaoailfa upon that MTereignty that God hatb
fW into hi* hands ; this makee me fear his mu-
}«tj is rais-in formed in what we go abooi ;
let OS make some enlargement, and put it be-
fcic him, thftt we will not make an^ thing new.
ta for Hie time of this sessioB, it is but short ;
Hd \«tA how many messages we have, so mnny
fatemiptiohs, and rota repnrlB, and mis-repre-
Metalfone to hie Dafjesty produce tbos« mea-
X.
r MiUt FfttttBOod ontinued the debate,
, and said. That this bnainesi is of great impor-
tincr, we are to accommodate ibis : tbe breach
«f tliit paHiatnent wiU be tbe greatest raiierj
that ever beftdt us: the eyes of Chrbtendofn
■reopon this pnttiitnient, the stftte of all our
Pre(MtM>t fhenda are ready to be swallowed
op \fj the emperor's forces, and oar own king-
dom is in a miserable wratt, for (he defence of
aartebfion that is invaded by the Romaa Ca-
Aalics, by tbe cek>uT of a comoiisajon, wh)«h
b intolembte ; the defence of our re*lin by
«hippin;l;s W decayed, the kin^s revenue is aok)
•ndgene; where shall the relief be obtained
tntin'pafliwvent? Now we are in the way, let
W proceed by way of bill, in panuanoe of tbe
linifa iiie»«4;e, to establisb tbe Amdamcntal
••■s in propriety r(oar|;ood«, and liberty of
nor persona ; It wna deckred to aa, * that
* Mawsi by Laaa
' lawiHil ;' let ui touch ibem in our Bill, and
that all precedents and judaments weioing to
the contrary, be vuid ; and ihat all commit-
ments ngaiiist tlie law be remedied, and that
we be piatecied ngaiiul ihe lear of commit-
Mr. Mtanii'i Sptic\.
I nm of ojiinion wiili the gentleman (bat
spake lint, ibat, in nur proi:eedin|[S in tbe mat-
ter now IB dchnie, ue should have u»e of the
title of the ataiuie, calleil cirnunipgcle agatii;
for it concerns tbe Liberty uf onr persons, witlih-
out ivliici) we do n»t enjoy our Jivea.
The Question is : \Vhether in this Bill for
the explanation of Majjna Cbana. and tlieves
iil'lliestalutrs, we ^aH provide that the oanie
of the commitment mu^t be expressed upon the
coinmitriient, or upon return of the Habeas
Corpni t
Before I ^eak to (he quMiion itaelf, 1 shall
propose some obscrvatinns, in mj conceit, ne-
ceasarily conducing to tlie debate uf tlie mutter.
]. That we ought to ukerare, and to pro-
vide for posterity, ns our predecessors hare
done for us, nnil that this provident care can-
not be eipoun4e(l tu he luiy distrust of tbe
performance of his innjesly's gracious derlnra-
lian, this act providing liir perpetuity, to which
his highness's promise, unlets ii'were hj act of
parliament, cnnnot extend.
e. That wa having long debnted and so-
lemnly resolved our rights and privilwea by
virtue of these statutes, and if no* »e thall re-
duce those declarations and those rtsoliitiont
into an net, we mutt ever hereafter expect to
he confined within the bound* of that act, be-
ing raadc at onr suit, and to be tbe limits of tli*
prerogative in that respect, and it being an act
of explanation, nbich shall receive do further
explanation tban iis^f contains.
3. Hutt by this act we must provide a re-
medy Bgaiost the pcrxoas whicn detain us in
prison, ^r as to tbe commander, there can be
no certainty.
Concerning ilie Question itse].f :
It hath .been aiilemiily and clearly resolved
by tbe house, that tbe commitment of a IJ'ree-
man, ivithout expressing the cnuse at tbe time
of tbe commitment, is against the law: If by
this act of explanation we sbull provide only
that the cnuse ought to be expresstd upon the
return of llie H. Corpus, then out of the words
of the stiuate, it will seeessaiily lie iuferrei<,
that before the. return of Ihe H. Corpus the
cause need not to be expressed, because tba
statute batb appointed tbe time of the cx|>rps-
sion of the cause ; and it will be construed,
that iftbemakenofthestntuiesbad intended
(hat the cnose should have been sooner shewn,
thty would have provided for it by the act, and
then tbe act, wliicb we Una an act of explana-
tion, will be an act of the abridging of ftlagin
Chartn, end the rest of ihe statutes : or if ibis
act do not make the commilirieDt without ex-
pressing ihe cause to be lawful, yet it wiU
clearly amooat to a toleration of the commit-
dent, trithout exprewng the c«iit^ uacil the
1S3] STATE TRIALS, SChiulbiI. ms^Procadins* in PadUment rOatiiv to [IM
H. Corjius, nr to a gcoeralor perpetual dit'
EeouitiuD, begiuaing wiih and cuntinuing as
>iie M ihclaw ilsulf. And id my undemanding
the wonls in this inieiided !iiw, ilmt no tVeeinaii
con lie commitied nitliout cause, can no ways
adjantnge us, or satbfy this objection ; for iill
the retutn of the H. Carpus, he thiit conimlis
isJudgel1^tJleca^si^, orat least htilh a licence
by tfiis law lUl tbat time to conceer ihe come,
and the RBRler U nut subject lo any aaion for
the detaining of the (jritoner upon such com-
mand. For if the prisoner demanded the cause
ofhisimprisoDiiii-nt of the gaoler, it nill lie a
safe answer lor liim tn say tbat lie ditaii.s a
prisoner bj warrant, and that it belong* not
unto bim lu desire those whicli comiiiit tlie pri-
soner iosbe» ibc cause until he rclurns tbe H.
Corpus. And if tlie ptiinn«' be a suitor to
know the cause frini those thiit comniilled him,
It nill be a suUicieut answer for tliem to s.iy,
■ hcywill eipn:sE> the cause at the return of the
TI. Corpus. In this case there will be a wrong,
bec;iuEa the comtnitment it without cause c%-
prsssed, and one that suffers ihat wroug, vii.
the party imprisoned ; and yet no surh wring-
doer but limy excuse, if uotjuitify himsdf by
In mailing of laws, »c must consider the
incunfcnieuces »hich tony ensue, and provirle
for iht: prevention of them',' ' lex caveat de
' futurii.' I have taken into my thoughts some
incitfiTrnieuces which I shall cjpa«e lo your
considerations, not imagining that they can
happen in the time of our gracious sovereign ;
but in an act of parliament, we must provide
for tbe prerentiun gf all inconveniences in
1. If aman be iudangerto beimpri^oned in
the bcginniug of a lung viication for refusing lo
pay some siukII sum of money, and knows That
by this act he can liave'iio inla^ement till tbe
rettjra of the II. Corpus in tlie term, Hu.^ that
(be charge of his being in prison, and of bis in-
Inrgeuient by H. Corpus, will nmount to more
than ibe sum, he will patt wilh moue; to pre-
,venl hiu impri^onrntnt, or to redeem himself
thence, because lie cannot say any man doth
hira wrong, uuiil tlie return of the 11. Corpus,
■ and the Inw resoliea. A man will pay a fine
rather than be imprisoned', Ibr the judgment
which is givcu when one is lined, is idiocapia-
tor, and ihe execution for debt is a cupiai ad
tatufacitndKm ; the bw presunling any man
will pan with his money to gniii his liberty.
And if the prisoner pr«cui« an H. Corpus, and
lie brought into the King'i-bench by virtue of
tl, yet the catisc need not to he then expressed ;
the provision of this law heine, tlial if no cause
be then expressed, be sliall be bailed, and no
rcauaebeiiigbhenn upon (be return of the H. Cor-
pus, yei it uny be pretended, that nt the time
of his commitiiiint ther.i weresirong presump-
tions of ^me great ottence, but upon exami'
nation tliey are cleared: or it may be said,
tbat tlie ri'lTence was of ibat naiiire, that tbe
time of liis imptisnoment bel'ute the return was
a suiiiciciit puiii'bnieiiL And we may be fre-
quently imprisoned in tliia nisnn«r, and never
underitaiui tbe cause, and have often tuck
poniibmeiit, and have no means to joitify our-
selves; and' for all tliete proceedings this law
will be tliejustilicatiat), or colour.
S. If by this act there be a toieratioa of im-
prisonment wiibuut shewing caase, until the
return al the U. Corpus; yet it it potstble to
npany that inipris'ininent with sucb cir^
tances of close restraint, and other hanl-
shipi, which I forbear to express, M m«y oiakc
an imprisunment for that short lime, as great a
punitlunent, as a perpetual imprisonment iu au
ordinary manner.
3. The party may be impriioaed a long, time
before he shall coine to be delirered by thii
law ; the place of his imprisonment may be in
the furthest part of this kingdom; the judges
always make the return of the U. Corpus a»-
sw«~jble to the distance of the prisou from
Wesiminsier ; the gaoler may neglect tbe re-
luni of the first procest, «iid then the ptrty
must procure an Alias, and the gaoler may be
then in some other employment for the liin^
and excuse tbe nut returning tlie body upo>
ihnt process ; and this may malte the imprison-
ment for a year. And in tlie end no cause
being returned, the party may be discharged;
' -" in the mean lima bo shall have impnsoD-
., he sliail never know ibe cause, be >hatl
no reniedy for it, nor be able to questioa
any for injustice, which have not ajiutibcaiioD,
:cuse by tbis taw.
Tbe party may be imprisoned during hit
hfe, and yet there shall be no cause ever shewn,
I wiil instance in this luaiAier: a man may bt
committed to the furthest part of the kiDgdgn
Westward; be obtains an 11. Corpus; before
the )iaoler receives the U. Corpus, or before
be returns it, the prisoner by warrant is re-
moved from that prison to another, it may be
tbe furthest Northern pan of tbe realm. The
lirst gaoler returns tbe special matter, which
will he EuUcieni to free himself, and in hke
be a peregrin iition, or wayfaring from one gBaJ
lo another, and be shall never know the cause,
nor be able to complain of any, who cannot
defend their actions by this bill.
,5. If the prisoner be brought into the conrt
by II. Corpus, and no cause eipreste«l, sad
tjiereapon ne be inlarged, he may be parity
committed again, and then his enlargeoietit
shall only make way for hit commitnuui : . and
this may continue auiing his life, and be shall
ueverlmow the cauie ; and this not remedied,
but rather permittedby this act.
And there are also tome things rematkably
considemble inthis matter; the eiptcceof tlie
parly in prison 1 his fees to ibe gaoler, his costs
in obtaiiiingand prosecuting an Habees Corpus,
and Ills charaes in removing himself, attended .
with such as have the charge of his conduct :
and that the prisoner must sustain all tbis
without satisfaction, or knowing the cause.
The only leatoo pren by those of the vt^e*
181] ffTATE TRIALS, 3 Cbabl£s I. I (i'2S.—the Libels <f ihe SutiftA.
(1S«
spioiDa is, Thnt it is rcqDiake, the king and
ouncil should have ptnrer to cimiiiiBDd the
itaunaol a maa in piisoa for some time,
■itkiuteipinsing the cause ; because it is sup-
naot, ibai the manirestatioa of the cause at
tat maj prevent the discovery of a treason.
Hm reMon is answered bj the remedy pro-
ptod; bj this act it beiuE proposed, that it
■lalt he praiided b; this Sill, that upon our
Bibe Chancery for an U. Corpus, relQisable
k AmX coatt, which is alaaji open ; and that
ipoB the receipt thereof, the writ must be re-
' tBoed, and Uie cwiae thenupoD eiprelsed.
If then tbb remedj be reallj the cause of com-
MmeDt, itmuKpartljappeau-; which com ra-
dios liie fbnner reason of state.
And in mj own opinion, we ought not qdI^
n tike care, that the subject should be deh-
TOfdoGtof prison, bat to prevent his impriaon-
ncM; the atalute uf Mi^tia Charta, and the
[T« of ibe ac<B, providing that no man ihculd
kntpriuned, butb; thelaw ofthe iand. And
•Unu|htbe king, or council, as it hath been
•tjtcted, hy fbroc may commit us without
ODx, notwithstanding, any Tans we caumake;
jetlaai sure without such an act of psrlia-
WBt, such conunitmaat can have no legal
«)lntr, and I would be loch we should nuke a
1m to endanger ourselves. For which reasons
Iranceive, thai there being so many ways to
trade this act, we shall be io a worse ciue hy
i^thu without it ; as it provides no remedy to
pRtent our imprisonment without expreasing
At cause to be lawful^ and administers ext^set
flit continuing us in prison, as I have before
Mared. And thus for proridine for one par-
tic»lar out of reawn of state, which possibly
on 6lQ out in an see or two, we shall sprlug a
Wik, which may sink all oar liberties, uid
ra gap, through which Magna Charts, and
eu of the Statulcj, may issue out and
•Mi«b. I therefore conclude, that in my poor
■Bd«itandinf> (which I snbmit to better judg-
■Hits), I had rather depend upon our former
RMlaiioDs, anil the. king's grncioos declarn-
hoDi, than to pass an act in snch manner as
kiihbeen proposed.
In roncloMon, the Commons agreed t
Answer to all the preceding Messages,
prCKDied it to the king by tt^ mouth of their
The Speaker's (sir John Finch) Spekcbio the
Kin^ in antwer CO several MesHgea, ii '
Banqueiin^Housr, May 5.
Most Gntcions and Dread Sovereign ; Your
1b]«I and obedient subjects, Che commons no
NKBibled in pariiament, by several Messagi
inn your majesty, and especially by that your
declaration ddivered by the Lord-Keeper be-
jbre both boaies, have, to their exceediog great
' jo; and comtort, received many ample expres-
■ons of your princely care and tender affec-
ciofia towards them, with a gracious promise
*Bd tMorance, that yoar n^jetcy will Bovem
according to the lawi of this realm, and so
maintain ail yoar subjects, in cite juH freedom
of their persons, and safety of their aitatesiihat
all their rights and liberties may be by them
enjoyed, with as much freedom and security ia
their lime, as in any age heretofore by their
ancestors, under the best of vour pn^nitors !
for this so great a favour, enlarged by a com-
fortable intimation of your majesty's confidenc*
in the proceedings ot this hous^, they do, by
me, their Speaker, make B full reiurn of most
hnmble thanks to your majeaiy, »ith all dutifid
Bcknowledgmeuc of your grace and goodocit
herein extended unCo them. — Al^d. whereas in
one of those meuages delivered from your ma-
jesty, ihere was an expression of vour drair«
know, whether this hnuse would rest upoD
really performed ; a* they again present theii
humble tlianks for the iieconding and itrengtlH
ening of your former royal expressions, so in
all humbleness they assure your majeity, that
their greatest confidence is, and ever must be,
in your grace and ^odnefs, without which,
cbey well know, nothing they can frame or de>
sire, will be of Mfecy or value to them ; there-
fore are all humble suitor* to your majesty, ihat
your royal heart will giacioualy accept and be-
lieie the troth of theirs, which ihey humbly
present, as full of truth and cuufidence in your
royal word and promise, as ever house of com-
mons reposed in any of their best kings.— Trhe
it is, they cannot but remember the pnblic
trust, for which ihey are accountable to present
and future limes ; and their desires aie, Thu
your majesty's goodness mi^hc, in fruit and
memory, be the blessing ind joy of posterity. —
Theysay also. That of late, there bath been '
public violation of tlie Laws, and ihe Subjects
Liberlies, by some of your majesty's ministers;
and thence conceive, that no less than a public
remedy will raise the d^ected hearts uf your
loving subjects to a cheerful supply of your
majesty, or make then) receive content in the
proceedings of this hnutc. — From these cousi-
derations, they most humbly beg your majea-
ty'i leave to lay bold uf ihac gracious offer of
yours, which gave ihem assurance, ihatifibey
thought lit to secure themselves in their Righis
and liberties, by way of Bill or otherwise, f
it might be provided with due re»pecc to Gud'
honour, ana the pablic good, - ' i ■
gracioosly plensetf to give way
from their "■■
ltd be
Far
is, any way to encroacb
'jpon your sovereignty or prerngniitei nor
hnre tbey the least llioughi of strtti-hing or en-
lairing the laws in any sort, or ly any new iu-
leiprctations or ndditioiu ; the bounds uf their
desires eilenfl no further, tliau to some neces-
sary eiplanalioo of that, which is truly com-
prehended witliin the just sease and nieMuing
of those laws, with some inudcrate provision
for execution and performance, as in times past^
upon like occaMon, hath hetn used. The way
how to accomplish these their bumble desires^
is now in Htioui couidetatioa nitb thenis
K1] STAl^TRIAl^. SChablmI. \62a.—Pniatdiiig» it, Parliaiimt nlatins m [IM
wtierem (key humbly ■nure jmir MJEKy, they
will BcitlMr loce IJtue, nor teak any thing of
jDur DM^Mty, kit th*t tlicy hepe may he &t
for dutiful and loynj lul^ects tu aak, and for a
p'aciuni and Just king to grnnt.
Hit Majeitya Airsw-cit wm dclitered by tb«
Lofd-KeapcT, Thuaai Lord Caventiy :
Mr. Spenter, and you Gentlcraef) of tbe
Hntse of Commont, his majesty ha» cota-
■naiided me to tell you, that lie eif«ct«d an
■luwer by yaar actiont, and not daby by dn- ,
cbune : ye acknowled^ his trmt and confi-
dence in yow proceediagi, but hi* maieKy aeea
not how you rei)iitte him byyoarconadence of
tni word aad aoliont ; far what need expli
tioni, if ye doubted itot ibe ^rtbimanceof the
trae meaning? Inr ezplniiatiam will hazard an
iacroadiaieiit upon his prerogntice. And it
nay w«tl be iriiJ, What need d new law tD>
etwGriD Ml old, if yoD rvposeoonfidence in the
decliiration his majesty made by me u both
bousea? And younelves acknowledge, that
yoar greatest trust and confidence must br in
bi* majetly's grace and goodnen, without which
BothinK that you can ^sme will be of safety,
i>r araitaMe to yon. Yel, to shew cienrfj tt>e
Mteeritf of hit majeftr's intentions, he is oon-
lent that a Bill be dnwa for a confiiraation
of Magna Charts and tht sii other statutes in-
listed upon for the Subjects Liberties, if ye
thall chit»e that to be ibe best way ; bat i
it may be without additions, nnmphnisc
dplanations. — TTius, if yon please, jou may
b« secured from your needless fenrs, and this
parliament may have a happy wished-for end ;
whereas by the contrary, if yon seek to tie
. yoar king by new, and indeed impossible bonds,
jroo must be aocntintable to God and your
country for ihe ill success of this meeting : his
majesty having giveti his royal word, thiit you
l^all have no cause to conplaiD hereafter; less
Hian which hath been enough to reconcile great
princes, and therefore onght much more to pre-
rail between a king and his subjects. — Ijisily,
I am commanded to tell ynu, that his inajesty's
pleasure i>, That without fortber replies or
tneasages, or otlier unnecessary (telayl, you do
wbat yoa mean to ^o speedily, remembering
diE last Messnge, which his msjesty sent you
fcy secretary Cook, in point oftimA: his tnn-
j&Cy nlways intending to perform his pro-
mise to his people,
NotwiclistaDding tbe intimation of his ma-
jesty's good pleasure for a Bill, Mr. Secretary
Cook.luesilay.May 6,Bgain pressed ih; hone
to rely upon the king's word, sayiiig, I'hat be
had rather foHow others, than begin to enter
into this business : loss of time bath been the
greatest complnint; the matter fallen now into
consideration, is, wlist way to take, whether
to rel^f on his msjesty's word, or on a filH ? If
we will comider the advantage we bdve in
taking his majesty's word, it will he of tbe
Inraest extent, and we shall cfatise that that
kath most assurance ; «n act of parliament is
by the consent of the king sod pariiatnent; hot
tbii aisBnikcc by word is^lbat be will guten
us by the Inivs; the king promises thftf, aqd
also thai they shall be so executed, that we
^hII enjoy as mneb freedom as ewer. This
contains many laws, and a grant of all good
lans; nay, it coatsins a cvnlirmatiDii of moa«
Tery hiws, asiviniDce, which binds farther tbea
tiie law can : ftrst, it liiods his alfection, which
>■ the greatest bond between king and subject,
and tw binds his judgment also, n*y^ his ho-
nonr, and that nrit at hoTB*, bet abroad ; tbe
royal word of a king is tbe ffoitn4 of all treaty (
nay, it binds his conscience. This confirtnatioN
between both houses is in nature of a tow ; for
my part, I think it is tbe greatest advantage te
rely on bis majesty's word.~'He fartbcr aMed,
this dcUite was fitter ta be dene befers the
house, and not before the »
it was a new course to gi
whole house.
Sir JeAn EUiol replied, That tbe prooeedtng
.in a committee is more booourable and advan-
tageoos to tbe kiag and tbe bonee, fat (bat
way leads most to truth, and it is a more «pen
way, and where every man may add his reasoK,
and make ansacr upon the hearing of otber
men's rsasons aiid arguments.
Thiii being the genernl Dense, tbe bouse <vn>
turned into a Committee, to take into connde-
ration what was delivered to tbe King by the
Speaker, and what was delivered to thsm bj
the Lord-Keeper, and all oiber Hassages, nod
the Committee was not to be bOnoded by any
order : tbe key was brought up, and none were
to go Out wilhout leave fit^t asked.
In the debate of tbis business at the conk-
mittee, some were for letting the bill rest : but
sir Edward Coke's reasons prevailed to tbe con'
trary. Was it ever known, said he, that gene-
ral words were n sufficient salisfiictiun to par^
ticnlar grievancea? Was ever a verbal de-
clarallon of tbe king tcrtum r^ni f Wben
Grievances be, tbe parlinment is to redm*
them. Did ever parliament rely on Kiev
sages ) They put up Petiuona of their Griev-
ances, and the kioj ever answered tbem : tbe
king's answer is very gracious, but vtliat is ibc
law of the realm, that is the question ? J pot
no diffidence in bis majesty, the king, mast
speak by a Becord, and in particuUn, and not
in general : did you ever know the king's met.
sage come into a Bill of Subsidies? Ait suc-
ceeding kings will say. Ye must trust ne a*
you did my predecessors, and trust my Me»-
Mgcs; but messages of love nerer nme intDjt
parbamant. La ds p«t up • Peiman of
Kight: not that I distrast tbe kina, but that
I cannot take bis trust, but ia a paruunea
On Thnrsd^, 8th May, the Petition nfRiglst
was finished^ and the clause of Martial Last
Was added onto it, and it was delivered to A«
lords at R CoirferencE in the Paitited Chamber
fortheir concurrettce; which Conference warn
managed by sir Edward Coke, wha thus tm-
pressed himsetf : I pray yovr lordships to »•
cnae tu, for «« b»*« been till one o'clock >b««t
I»]
STATE TBIALS, 3 Chablu L )628_iA« Uiertf efiht Sufytrt.
concur witb
[190
the gnat buiioets, and, bleised be God, "«
LaTc di^accbed it in tome measure, aad ba-
fore thii licoe we weie ant able lo attend jour
lauded Irom the House of CauTinoi
Hcas tbeir singular care and aflcction they
haie of concurreDce with j^our loidthips, io
tkw iu^Q{ affairs and pnjceediogs of ttiK par-
liament; bolh fur the j;oo<l of tbe common-
«ulth, and principallj for bii oiHictly's. And
thb I maj HJ in ibis particular, if we bad hun-
diada of tonj^ues, ne were not able to expren
lias desiie »lufh we hsie of ibat concurrence
vidi jour lordiblpi : but I will leave it without
anj further expreaion. My lords, it ii evident
•kac Beceseitj there ii, both in respect of your-
•drci, «Bd jrour posteritin, to havr good buc-
ceis in thi? business. We have ac^ainted
jour lonfahipt with the Reasons and Arguments,
and after we have bad some Conference, ne
have mcitnl from jour lorrfsliip five Propo-
mioas; and k behores me to give joar loid-
sbips some reosoas why jon luve not beard
ftaio *s before nuw j for iu the mean time, as
•* were causutiing of this weighty basintss,
•e k«ve reenved diicrs Messages from our
^r«at sovereign the king, and tbej consiRtd of
I. That his majttty would maintain all bis
Sabjeclt in tbeir juu lieBdom, bMh of their
3. That he will govern accordii^ to his Laws
and Statuic*.
3. Tliat we thouid fiaJ mucfa canfidenoa in
Lil Kojal Ward ; I pray observe iJmt.
4. That we sbaU csjay all our lUgliu and
Libeitin, with as much freedom and libertf
»» ever any subjects have ione i/\ foraier times.
5. That wlietlter we shall thUik it fit, either
by way of Bill or-otbenvis^ to ga on in tlii)
(real husit>eBs,bi( inajegty would be pleMed to
^ive way to ii.
These gracious Messues did so werk upon
out aflectkuis, that we ha*e taken thetD into
ctnuitleraUoa. A}y lords, when we had these
lieawgea, (I deal plaiulji^ for so I aui com-
Kiaaded by the House «f Commons) we did
consider, what way we might go for wtr nwre
«ecnre way, nat/, yonia ; wa did think it tho sa-
ieat w^ to go in a (^lianientary ooats^ ibr
we Lave k maiim in tbe boase orcofiinHU),
and writiau on tlie na& of our houses That
aUmj*aretb«*!il(BtaiHlsKTcitw^i: and «t
last WB fell upon tlwt whioh w« did think, if
that your lordships did ritniiat with us, it is
tbe nmat aocieot «ay of nil, and tl>at is, my
Junfa^ viajmtuia, both 10 Us mueii^, to yuir
lon^iipa, said to oofielies. Fur, nv Uidi,
■his '» the greatest boad, that aa^ subject can
lave ai patliameBt, verUim rtgit, this is aa
UghiKtiatof Ikmkwc, but tiiis shall be done by
the loidc and comimans, and aaseoted to by tbe
luagiii parliament; >this is the greatest obligft'
tioa-of aU; and thiajefei the king's fat»iaur and
ewMleiy. Xherefere,inylerdi,weJiave'di»<>n
abmof afevitioD, dc»iringyourJwdabi^.tD
ein; for we come with an
of all tlie house of con*
mons, and there is great reason your lordship*
should do so, for your lurdibips are involved ib
tbe same cunditiun, camnrnttt ptrUvlMim. So I
, have done with the first patt : and Mw I shall
be bold tn read that which we have so. agreed
oil, and I sball desire your iurdsbips leave that
I mny read ic
Here the Petition of Ri^ k»s reed ; ' bat
we forbear to inseK it, as yet, because there
wne propositioiis Ibr citemtion ; and it is not
perfect, till the royal assent be ^ven to it.
From tbe 8lh to tbe 13th of May, all puUie
business was laid aside. On Moauy the Igth,
the I^ida had aConfarence with the Commons,
where tbe Lord Keeper nude tiits Speech:
Gentlemen of tlie Hou^e of Commons ; JSf
Xxirds, haviug a most affectionate desire to
maintain that good concurrence,, that in thia
parliamsntand others have baen of late between
both houses, desired t)iis CoDfcrertce, to ao
qiiaiiityou, how, and in whatntanner, they have
^Aiceeded in the Petition of Richt that coma
trom this beuse, aod to let you know, ibat a)
soon as they had received it, ihey, with all care
and esiieditWD they possibly could, addressed
themselves to consid^ thereof; and after goed
time spent in deinte in tbe whole house, they
made a committee to consider, wbeAer relaiit*
ing tbe substance of the Petition, thine might
not be sotne words altered, erpot iu lemahe it
more sweet, to procure it a pi^sahle wu 10 hi*
majrscy : we know this must be crowned bytha
kiog, and good mast come lo all the kiogdani
by thiscaarsenow taken. The connittee bath
net, aad hath propauiuled some small maUats
to be altered m some few words, to rnakc it
passable, aad not iu substance. And tlie lorda
having ebis reported ftom their cnmmittee, aad
beard it read la their house, resolHsdofaothiag
till they hare your consent ) yet they think it
fitter to have it propounded 10 yov, to coaskhr,
whether there should be any ■laemtion or no,
and how tJie propounded ^teretiuns BMiy ttand
witli yourhluog, — Conoerniog the twrnnilBMnt
by the king and tlie council, wilboat npresaiog
lite cause, i^waaresd*cdby theJoEds todsbate
it this monuDg, aad as^seon as they shmildhave
debated it, they pui«ilMd to have your concur'
reoce with ihesu btfott they feeeUed it ; bn.ai
the instwC whan they thought tw bare debatied
it, they rootived a XeUer fram bis nujesty,
■liicb, they conoeivr, will givea satlslactjnn to
btitb bouses in the maim poiuL My lords de-
xiring (o keep that gaod ooBctBTeaM hngwa.dfr-
sired to cOmntwaicate that LMtee anto yea, that
jqu Blight take tlie sane iota y«M coBsidera-
iieiu,a> theymmtotk>ii«msel«M: ThsLet*
tcr is to be read aiMo J*" '
To our right trusty and welt- beloved, \1te I.ord*
Spiritual and Temporal of tbe higher houw
ol parlinment.
< C. R. W-e -being deMoaas of DOtbiagwoM
1 1^„ ^, adTABOHMMt e^ thejMMfl aaifim-
191] STATE TRIALS, S Ca-isLBs I. 1626.— ProUedingt iii Parli^aent relating lo [19S
• ptritj of our people, hare given leave to frea
< debate upoti tlie highest poinis of our preroga-
* tive rojal, which iri the cirae of oar predeces-
' sors, kjDgs aod queeiia of this realm, were ever
* mirain^ u matten that ihey would not liave
' dbcossed; and in oLher ihrngs it bare been
* willing BO far to descend to the deairea of our
f l^ood subjects, as might fully satiify nil mode-
' rate minds, and free from idl just fear* and
■JMdoiuies, which those messages, which we
* have hitherto scot into the Common* house,
* will well demoDstrate unto ibe worid. Yet
' WB find it Mill insisted upon, that in no case
' whatsoever, should it never so nearly conceni
* mattera of state or goTemrnent, we, or our
' privy oonncit, bare no power to commit any
' man without the cause shewed; whereas it
' ofif n happens, that should the cause be shewed,
* the wrvice itself would thereby be destroyed
' •nd defeated; and the cause alledged must be
' auch, as mny be detennmed by our judges of
* oar courts of Westminster, in a legal and or-
' dinary way of justice j whereas the causes may
* he )uch, whereof the judges have no capacity
' of judicatDTc, nor rules of law to direct and
' guide their judgment in cases of that iran-
* aceadent nature; which hsppeningso oflen,
* tbc very intermitting the constant m!e cf go-
* vernuent, for to many ages, within ihis king-
* dom pisctiieil, would soon dissoUe the very
' foanilatioD and frame of onr monarchy.
' Wherefore, as to out commons we have made
' fair propoMtiona, which might equally preserve
' the just liberty of the subject ; so, ray lords,
* we have thought good to let you know that
' without the overtbiaw of sovereignty, we can-
' oot sufler this power to be impeached; not-
' witbttaiiding, to clear onr conscience and just
■ inteutiona, this we publish. That it is not tu
' onr heart, nor will we eier extend our roynl
* power, lent unto us from God, beyond the just
' rule of moderation, iu any tiling which ihalt
* be contrary to-our laws and custom, wherein
! the safety ofour people shall be our only aim.
* And we do hereby declare our ra>al pleasure
' and retolation to be, which, God willing, we
' ibdl ever coniiantly coniinue and maintain,
' That Deitber we, nor our piivy council, shall
' Of will, at any time hereafter, conaniit or tom-
< mand to prisoa, or otherwise restrain the per-
* mm of any for Dot lending money to tis, nor
* for any cause, which in our conscience doth
* mot concern the public gfiod and safely of us
' and our people; we will not be drawn to pre-
' teud any cauae, wherein our judgment nnd
' conscience is Dot tttisfied with; which base
' thoughts, we hope, no man can imagine will
< fall into our royal breast; and that in all ca'es
* of this nature, whicb ahall hereafter happen,
' wa shall, upon thr humble petition of the party,
' or addresi) ofour Judges uiito ui, readily nnd
' really express the true cause of their cummit-
' ment or restraint, so soon as with convenicncy
' and safety (he same is fit to be disclu^ and
* expresied. And that in all cnuses criminal of
' oMinaryjnriidiction, our judges shall proceed
' t* tlw Ai,\*9ntKt or bailment of the prisoner,
' according to the known and ordinary rales of
' tlie laws of ihisl.-uid,aDd according tu tbeSia*
■ lutes of MagnaCliarta, and thoie"tber«ixSta-
■ tutes inhistcd iipon.n hicli we (to take knuuledf^e
' stand in full force, and which wl' intend not to
* abrogate and weaken, ai^ainvi iheirueiuleiUion
' thereof. ThiBwehaieChoughtfitioBJEnifyunto
* you, t he rather tnbborieuunyt'ingDtbnteupov
' thisgreot quest ion, the seosnn of the year be-
' ing so fur advanced, and our great occasiODl
' of stale not tetiding us mnny more day* for
' longer continuance of this fe^Bioii i>f parlia-
' ment.' Given under our Signet at our Palace
at Westmiiisler, 13 Maii, the 4th year of our
reign.
Th(
day the King's Letter was c
Lted to the house of commoni, they laid
« King's
aside, and sir Thomas Wentworlh said. It
was a Letter of Grace ; hut the people will
only like of that which is done in a parliamen-
tary wny: besides, the debate of it would ipeiid
much lime, neiilier was it directed to the Luu^e
of commens; and tlie Petition uf Right would
clear all mistakes : For, said he, some ^ve it
out, as if the liouse went abont to pinch the
king's prerogaiive. But the further debate of
this matter tDok up several days.
May 17. The Lords propoutuied, at a Coa-
terence, nn Addition in be made to the Peti-
tion of Kight, which vma delivered by the Lord- ,
Keeper, tO tl.is purpuse :
" You the kni^hls, citizens, and burgefsei of
the bouse of cummons, my lords have com-
mnaded me to present uuto yon the singular
care and affection they have to preserve that
correspondency and order, nhkh tha two
houses (hoili in this and former parliaments, to
the happiness of this kingdom) fia.it heretofore-
etijoyed.
" They command me also to let you know,
tliat they have no less care andl affection lo
bring that great husinesj, (Ae LUierly oflAe Stifc-
jrcl, to nn bnppy issue. And whereas nt tha
Inst Conference r,f both houses, ibere were ^ome
things propounded, that cume from their lord-
ships, out of a desire the Petition (night havti
the easier passage with his majesty, not intend-
ing lo alter in any manner the substance of the
Petition ; but it was then tliouglit fit, tliat there
waff anolher pnrt of the Petition, of as great
impottsnce and ueisht: my lorrfs, since the
time of that Conference, hare employed ihem—
selves wholly to reduce llie Petition to stirfi a
frame and order, that n)ay give both to you mud
tittm hiipe of acceptance.
" And after mHny deliberationt, and mnch
adrice taken, my lords have resolved to repre*
sent to you somethinj; vhich they have tliou|^
upon, yet not as a thing conclusive to them or
you ; and accordiiu; lo their deisires (bavins
mentioned it in the beginning) have held it 6c
to conclude of nothing, till that yon be made
acquainted with it, and tliat th^ msy be k
mature advisement between you and them, so
that there may be the happier cotidiuion in all
their bosinei*.
193]
STATE TRIAIS, SChakiesI. 1628 the Uiert^ <^ the Suhject.
[194
" Ttui being ihe determiiutlion of cbe lords,
(Lit nodiiog, thut is now oQered unto jou,
ilKHild be ciiiidutiTe, yet ibcj thought it con-
veaie^t [o present it unto ynu.
" Tiui alieratiun (a.nd not tilLeralioD,butaJ-
dilioo) wLiclt lliey bhaii propound uiito yuo, to
be idvised and conferred upon, wliicli is no
hreich of tbe same, they think it meet, if it
•hall itand wilh your libing, (o be put in tlie
cuaduiioQ of tlie PeiiltOJi which I sliall
' IVe present this oui humble Petition
' your iiiHJcsty, with the care not cinly of pre-
' Mcving uur own liberties, but with due i~
'gard to leave mtir« that Sovereigo Po»i
' wherewith your ronjesty is trusted for the
' piolrclii>n,sate(y,BndhnppiDe(Sof lbep«o|il<
" This is ibt! thing ihe lorda do pri^cnt un
joa, tbe subject of this Conference, concerning
ihe adding a( this in tbe conclusion of the Peil-
tuoj mit^ ttiey know, ihat this is uo sidhII
Ibing, and tliut you cuDiiot presently give an
mtsHcr to iti ibeiefure they desire yon, that
yog do witli some speed consider of it,!ind Lheii
tonyups will be reiidy this afternoon."
This Addition produced sererai Speeches.
Hr. Atford. Let lis look, snid he, into tbe
Records, und tee nbat diey are, wbaris" Sove-
reign Power ?^ Bodin saitfa. That it is. tree
finui any condition, by this ire' shall ncknow-
Icdje a regal, as veil as a legal uoiver : Let us
gire that to tbe king, that tbe law gives him,
and no more.
Mr. Pymm. I am not able to speak to this
<|iMstion, I know not what it is: All our Peti-
(Km is for tlie Laws of England, and tbiajMwer
ieems lo be another diglinct power fron tbe
powtT of tbe law. I know bow to add sove-
nipi to his person, but not to his power i And
*e cannot leave to him a sovereign power,
■ben we uever were'uosaessed of it.
Ur. l^loBtll., We cannot admit of those
■ordii with safety, tbey are applicable lo alt
die paru of our Petition : It is in the nature of
aSavinf^ and by it we sbalJ imply, as if we had.
lactoaclud on lus prert^ative ; all tile laws we
die are wiiliout a savinf : oJid yet now after
iIm riolatiun of them we must add a saving -. I
bare seen divfrs Petitions, and where the sub-
ject clniioed a Right, there I never saw a sav-
ing of this luture.
Sir Edamrd dike. This is iiiagnnDt inpamo,
ibiait propounded to be a conclusion of our'
'FebtioD : U is a matter of great w«i{ht ; and,
to speak plainly, it will nverthrow ^1 our Peti-
tua; it LreDcheg to all pans of it : It ftici at
I<(iai4, and at tbe Oallij itiid at Imprisoument,
and Billetine oi Soldiers ; this turns all about
i^B. Look ioto all ihe Peiitiuus of fonner
tiior^ they never petitioned, wherein there was
* tatiag of tbe king's soveieiitnty ; I know ihac
prerogative is pnrt of the l.iw, but ' auvereifcn
power is no parliaiiitutury word. In my npi-
BKU, it weakens Magna Charta, and all our
ttslates; for tticy are iibsoLute, tviiliout any
miag oi lovereign po.wer. And shall we now
kU it, we bhall ireaMs the fouudaiuo of htft
TOU III.
and then the buildiag muit needs fall ; let o»
take heed what we yield unto; Magna Charta
is such a fellow, that he will have oo sovereign.
I Hoi^der this sovereign nas not in Magna
Charta, or in the confirmalions of it ; If we
grant this, by implicatloi) we Ki^e a suvrreign
power above all these laws i power, in law, is
taken for a power with force : Tlie Sheriff bbnil
take tlie power of tlie county, what, it means
here, Ood only knows. It is repngnaiit to our
petition, that is a Petition of Uight, grounded
on acts of parliament, Uur ptedeotsstirs couid
nerer endure a leho jure mo, no more than
the kings of old could endure for tlie churdi,
sutzo huHorc Dei et JiccUtia. We luusi not
adniit of ir, and to qualify it, is impossible.
Let us hold our privileges according lo the Ian;
ibat power, that is above this, is not (it far the
king anil people lo haveit disputed further. I
haiT rather, tor my part, have iha prerogntive
ncuxl, und I myself 10 lie uuderii, tlum tohave
it disputed.
Sir 'I'domat Wentwortli. If we do admit of
e slinll 1
B little
than we found him, i
thanks for our labour,
L< t us leave all power to his majesty to punish
mnlefactora ; but our laws are not Bcquainted
with sovereign power ; we desire no new thing,
nor do we irffer (o trebch on his majesty's pre-
rogative ; we must not recede htim tliis PetK
tion, either in part or whole.
Mr. Noye. To add a Saving, is nut Mfe;
doubtful words may beget ill construction :
and the words are not only doubtful worde, but
words unknown to as, and never used iu.anj
act or petition before.
"^r. Seldm. Let us not go loo hastily to the
question. If there be any objections, let any
propound them, aod let others answer them as '
they think good. I will not touch tbe reason!
already given. Tbe gdm of this addition is,
that our right is not to be subject lo Loans or
Iinprisonnient without cause, or Martial Law, -
but by sovereign power'. If it bath no refe-
ence to our PeutioD, what doth it here f I am
ure all oihtrswill say it liath referent, and so
QDst we. How fiir it doth exceed all examples
if former times, no man can shew me the like.
I have made that search that fuUy satisfies me,
and I tiiid not annther besides S8 Ed. 1. Wo
have a great many petitions and bills of pulia-
ment in all ages, iu all which we are sure na
such thing is added. That clause of ihe S8
Edw. 1, it was not in tite petitioa, hut in the '
king's answer.
In Magna Charta there.were no such clauses;
the articles themselves Are to be seen in a
library at Lambeth, in a book of that time, upon
which the law was made. There was none
the Statutes in king John's lime, for tlieee I
have seen, there is no 8>iviap. In ibc aitirles of -
o'lfinnatto diartana, is a savinjc, ' les niicii nts
:d^' tliat is, for ' file maryer, et pur f.iir liu
chivalier,' and far, ransom. And in tiie uiti-
clesof kiag John, in the original Chuner, which
I can sttew, thfre those three qidi viere nauied
195] STATE TRIALS, 3 Ckablxs I. 1628.— Proeetdmg$ in Porluitntnt relating to [196
therein, and xhej were bU knnwa. Id tbe 35
E. S, there U » petition againit Loans, there is
no saving, and so in otheni. As for that addi-
tion in the 98 E. 1, do liut observe tde peii-
tiona after Magna Charta ; as 5 E. S, ihtj put
up a petition : * whereas in Maj;na Charta it is
caatained that none be imprisoned but bv due
process of law ;* those words are not in hfagna
Charta, and yet thrre is no saving. And so in
the 38 E. 3, and 36, 37, and 42 of E. 3, nil
which pass bj petition, and yet there is no sav-
ing in them. Aad theie are in tbem other
words chat are not in Magna Charta, and vet
DO sa.vii]g. For that tliat Mr. Speaker said to
tl|e kiug, it WIS our heart, and ever shall be i
but we then spoke of the king's prerogative bj
itself, and ne are bound to say to : but speak-
ing of our rights, shall we sej we are not Co b«
imprisoned, savini but by the king's sovereign
power? Say my Tnnds, without any title, be
seised in the king's hand, and I bring a Peti-
tion ofAight, and I go to the king, and say, I
do by nu means seek your majes^s right and
title ; and after that I brine a petitian or mon-
ttranee de dmit, setting forth my ovm right and
title, and with all set doon a saving, tbnt I
leave intire his majesty's right, it would be im-
proper. It «Bs objected, ibat in the 38 of E,
1, in the end of Articuli super Cfaartas, which
VBS a conlimintion of Magna Charta, and
Charta de Foresca, in the end there is a clause,
'savant le droit et signioryi' the words are
extant, in that RoU that is now eicant, but the
original roll is not eitant.
' In the i5 E. 1, there was a confirmation of
tbe Charter : in the 37 E. 1, the parliament
was called, and much stir th^ was about tlie
Charter, and renewing the Articles, but Chen
little was done. In 38 E. 1, the commons by
Petition or Bill, did obtain the liberties and
•nicies at the end of the pariiainent; they
were extracted out of tbe Roll, and proclaimed
abroad. The addition was added in the Pro-
clamation : In tbe bill there was no loMHt, but
afterwards it was put in ; and tn prove this, it
is true, there is no Parliament-roll of that year,
yet, we have histories of that time. In the
library at Oxford, there is ajouroal of a pariia-
inent of that very year, which mentions so
much; also in the public library at Cambridge
there is a manuscript tfaat belonged to an
«bbey, it was of tbe same year S8 ^. 1, and il
mentions the parliament and the petitions, and
' articulos quos petienjnt sic conGrmaverat rex
* ut in fine adderet, salvo jura corons r^s ;'
Bud they came by proclamation in London.
When the people lieiird this clause added in the
end, they teU into execration for that addition,
and tbe great earls tfaat went away satisfied
troFD the pariiament, hearing of this, went to
the king, and afterwards it was cleared at the
Deit parliament. Now there is noParliament-
■ roll of this at that time, only in one roll in the
ond of Edw. 3, there is a roll, that recites not
the Parliament bill, but the statute thai
(he eSect of tbe roll that was proclaimed.
Tbe lArd* aAerwanb, at a Conferaxe, teo-
derrd Reastms to fbrti^ their Addition ; which
were briefly repotted by the Lord-Keeper :
" That the lords were all agreed Co de&nd
id maintain the just liberties of the subject,
and of the crown ; and thai the word, ' leave,'
was debated amongst them; and thereby thej
meant to give no new, but what was before:
for llie wurds ' sovereign power,' as lie is a
king, be i* a sovereign, and must have power;
■HI be said, the words were easier t)»n tbe
Prerogative.' As for tlie word, ' that,' which
I a rdadve, atul referred to ' tlutt power,' that
is for the safety of the people; and this, said
he, can never grieve any man. Beiug thus
Cubliahed, it is not sovereign pow^- in geneisl ;
ut now in confutation of out reasons. Magna
Charta was not with a saving; but, said he, you
pursue not tbe wotds in Mapia Charta, and
therefore it needs an addition. As for the 38
of Edw. S, he said, there was a saving; and
an ill exposition cannot be made uf this, and
both houses have agreed it in substance al-
ready ; tbe commons did it in a speech detiver-
ed by the Speaker, and that we say we have
not a thouKhc to incroach on the king's sovtr-
r^igncy ; and why may you not add it in your
Petition f"
Upon this report,
Mr. Jlfeuon spake bis opinion in manner
following :
In our Petition of Right to the king's majesty,
we mentbn the laws and statutes, by wtuch it
appeared. That no tax, loan, or the like, ought
to^e levied by tbe king, bat by common assent
in parliament : that no freeman oaght to be
imprisoned but by the law of the load; that
no fneeman ought to be compelled to suffer
soldiers in his house. In the Petition we have
expressed tbe breach of these laws, and denre
we may not suffer the like; all which we pray
as our Rights and Liberties.
The lords have proposed an Addition to this
Petition, in these words i ' We huiobty pre-
' sent this Petition to your majesty, not only
' with a care of our own Liberies, but with m
' due regard to leav« entire that Sovertign
' Poarr wherewith your m^esty it intrusted
. Addition, is the subject of tliis day's
discourse : and because my Lord-Keeper, u
the last tonference, declared their lordshipa
had taken the words of tbe Petition apart, I
shall do so too. The word, ' leave,' in a peti-
tion, is of tbe same nature as ' taring' m' a
gran(,orsu!tof parliament; when a man grania
hut pact of a thing, he saves thereat: wl^ be
petitions to be restored but to part, be leaveth
tbe rest : then in the end of our Petition, tbe
word, ■ leave,' will imply, that tometbing is to
be left of tJiat, or at least with a reference to
whet we desire.
The word ' intire,' is very contiderabte ; k
conqtieror is bound by no law, hut bath power
dare Ugtt, his will is a law ; and aloodgh
William tbe Conqueror, at fiiU, to make his
way to the crown of Emland the nun eaif,
197)
STATE TKIAI^, 3 Charlm I
•ltd the powwtion or it rai>re sure, claimed it
by till* : but mfierwards wbea there were do
pauerAil pntenders to the ctnmn, che litle of
amqqcit (to iotroduce that absniute poner of
a conqueror) was cUimect, apd that statute of
UatjiM Cbarta, and other statutes mencianed
in our Petition, do priDcipall; iimit Ihat power.
I bope it is as lawful for roe to cite a Jesuit, m
it is for Dr. Maowaring to fabifjr him ; Suares,
in hii.firtt book, dt I^gilnu, cap. 17. delifered
kif opiiiiaa in these words, ' Ampliludo et re-
'Mnctia poteatati!
' nala vei iajuHa i
i iajuHa DOD sunt, pendet ex arbitrio
- nomiBufD et ex ambigaa cortveotione tcI
' pacta inter rei;es et TCgoum.' And he farther
cxpreMCih bis <^iQn, Tbat the kiug of Spain
was to absolute a monarch, ibat he might law-
fuUj ii^Nwe tribute without cnnseot of his
people, nntil about SOO Tears unce, nfaea it
was condodeii between him and his people,
that without consent of his people bj proxies,
he sfaodid not impose any tribute. Arid Sunres's
opinioD is. That bj that agTceni«nt, the Linn
of Spkin are boaad lu impose no tiibuie wiib-
And this agreement that author calls a re-
straiaii^ of that suv«reigo power ; the Siatutea
then mentioned iii our Petition, rettraining that
absolute power of aConqneror; if we recite
those statutes, and t«;, we leave the toverei^
power intira, we do take away that restraint-
which is the rirtue and itrengtli of those sla-
ti^ea, and iM *t liberty the c£tim of the sove-
rei^ power of a conqueror, which is to be
bmilcd and restrained by no laws ; this may
be the danger of the wonl, ' intire.'
Hie next word ilelirercd by the lords as
obserrable, is the particle, ' that;* becattie it
was Mid, that all sovereign power is not men-
tioned to be left, but oul; (that) with which
the kitig is trusted for our protection, saret^f,
>od happiness; but I conceive this to be an
exception of all sovereign power ; for all sove-
(««« power in a king, is for the protection,
safety, and happiness of his pe«fje. If all »n-
vercign power be eiceptfcl, you nay easily,
judge the consequence, all loans and taxes
tKiOE imposed by colour of thnt sovereign
The oeiC word is, ' Trusted ;' which is very
unbiguiHu, whether it be meant, trusted by
God onlj Bi a Conqueror, or by the people
•bo, as King, nbicb ai« tn govern hIm occord-
iof to laws, ej patio, la this point I will not
presume to adventure liinber; only I like it
not, by reason of the doubtful exposition it ad-
mits. I have likewise considered the proposi-
Doa kselT, and therein I iksve iklleii upon the
dilemma, that ibiii Addition isball be construed
ettbertorvfler onto the Petition, or not; ifii doih
Dot refer anto ilir Petition, it it merely useless
and mmeceaeary, and unbefitting the judgment
of this grave and great iiiasiiiliit to add to a
Petition of this ncieht. If it hnib refeisnce
BBto it, then ^t destroys not only ihe virtue and
■rtng^ of oor Petition of Right, but our riibts
iJMuelre*; ibr the Adtfition being rcferreo to
16Q8.—lhe Libaiy t^Oe Sk^I.
each part of the Petiiio
(IDS
ought to be
compelled to mate' any gift, loan, or such like
charge, without common consent, or act of
parliament, unlrss it be by the sovereign [lower,
with which the king is trusKd for the proteo-
tion, safety, and happiness of his people.
That none ought to be compeUed to sojourn
or billet soldiers, unless by the same soiereiga
power ; and to of the rest of the Rights con-
tained in the Petition : and then the most fa-
TOurahla construction will he, that the king
halh an ordinary prerogative, and by that ho
cannot impose taxes, or imprison ; that is, he
cannot impose taxes at bis will to eaiploy them
as be pleaseth : but that he hath an extraordi-
nary and transcendant sovereign power for the
protection and happiness of his people, end for
such purpose he may impose taxes, or billet
soldiers as he pleaseth ; and we ma; avure
ourselves, that herealler all loons, btiei, and
billelting of soldiers, wiL be said to be for the
protection, safety, and happtnest of the people,
pertainly bereafter it will be conceived, that an
house of perlinmenl would not have made an
uonecessary Addition lo this Petition of Right;
and therefore it will be resolved, that ibe Addi-
tion hath relation to the Petition, which will
have such operation as I h^ve formerly de-
clared; and! Uie rather fear it, becanse the
late loan and billetting have been declared to
have been by sovereii^n power for the good of
ourselves; and if it be doubtful whether this
proposition hath reference to the Petition or
not,! know not who shnlljudee whetlier loqns
or imprisonmenis hereafter be by that sovereign
A parliament, which is made a body of se-
verol writs, and may be dissolved by one iwm-
mi^on, cannot he certain to decide this ques-
tion. We cannot resolve chat the Judges shall
, determine the words of the King*s Letter read
in this house, expressing the cause of commit-
ment may be such, that the judges have not
capacity ofjudicature, no rules of law to di-
rect and juide their judgments io cases of tlixt
traiuceniiant nature; the judges then, and the
jucl^ents, are easily conjectutvd. It halh
Deen confessed by the king's couniel, tlinc the
statute of MatEna Ghana binds the kiug, and
his sovereign power cannot be divided from
himself. IT then the stniute of Mafoa Charta
binds tbeking.it hinds his sovereign power.
If to the Petition theae nords be added, thtt
exposition must be, that the statute of Ma^a
Charta hinds the king's sovereign power; saving
the king's sovereiin power, I shall endeavour
to give some answer to the Reasons given by
the lords.
The first ii. That it is the intention of both
bouses, tn maintain the just Liberty of the
Subject, and nnt lo diminish ihe just power of
cbe king : and therefor^ the expression of that
intention in this Petition, cuinot prejudice us.
To which I answer.
First, oar intention was, and is, ai we then
professed, and no man can assi'gu any particular
199] STATE TR1ALS> SChablesI. \0Q5.— Proeeedinss in Parliament relaiv^ to -[HXi
in viiirch we have done [9 the contrary ; nei-
ther have we anj waj transgrt-ssed in that kind
in thii P«[uion : •nd if weinake this Addilion
to the I'ettdon, it tvould give siirae intliaation,
that we have eiven a ciiuse or colour of uflence
therein ; which we deiij : niid which if any
roan conceive bo, let litm assign the particular,
tliiit ne mny give aiisiver (hereunto.
liy our Petition, we ■ inly, desire nur particular
Righia and Liberties to be coufinned to us;
ana tlierelbre it is not proper fur us in it (o
inentinn sovereij-n power in general, being al-
ti^ethcr impertiiieul to rhe matter of ihe Peti-
tion.— There is a great difference belwcen the
wnrdii of the Addition, and the words proposed
therein, vh. between just power, winch may
tic conceivMl to be limited by laws, and Mive-
reign puvier, which is supposed to be Irans-
Cendant and boundless. ^
The second Season delivered hj their lord-
ihips, was, Tliat the king is SDvereign ; (hat ns
he in sovereign, he hitth power, and that that
eovereign pontr is to be left :' for my purt, I
ivonld leave it to, as not to mention it ; but if
it 'iiould be expressed to be left in this Peti-
tion, as it is proposed, it must admit something
to be left in the king of wliat we pray, or at
least ndmk some sovereiijn power in his m^-
je%tr, in these privileges ivhich we claim to be
our ri'ihl, which would frustmtB our Petition,
niid destroy our rij^ht, as I have formerly
(tiewed.
The third Reason given" fir this Addition,,
was, 'Oi-.it in the statute of ArtitniU super
Ch.irt.is, there is a suviiig of the Right and
Seitiniory of the crntrn.
Towhichlgitethese Answers: ThatMapna
Cliarta was C'iniirmed above thirty time;, and
a general taring w:is iu none of these nets of
confirmation, but ill, this only ; and I see no
caute ne should follow one ill, and not thirty
good precedents ; and the rather, because that
KLvifig produced ill eDects, that are well known.
—That saving was b; act of parli-iment; tlie
conclusion of which act is, Tliat in nil ib'isr
cpscs ihe king did will, and all tho'C that were
at the making of Chat nrdinnnce did intend,
thhttlie Right nndSeiijuiory of iliecrownshouU
he saved 1 by ivhich it appears cliat the saving
was not iu the Petition of the commons, but
hdded by the king ; for iu the Petition, the
ling's wilt is not expressed,
111 that act the king did grant, and part with,
to his people, divers rights beloDEing 10 bis
, prerogative, ns iti the first chapter tie granted.
That the people might chuse three luen, whicli
uii^ht have power to hear and determine com-
plaints, made ngniiist those that oSended in
aiij [Miint of Magna Cliarta, though they were
the king's oAicera, and to line and ransom them.
And in the S, 12, and 19 Chapters of tliat Sta-
tute, the king parted with other prerogatives,
mill therefore there minht be some tcason of
. the adding ofthat sovereign power, by the king's
counsel; but in this Petition, ive deiire- no thing
of the king's prerogative, but pray the eJijoyiiig
'if our proper and undoubted rights aiid privi-
The fourth Reason given by ibeir lordships,
v^ns,ThBt bjbtlie mouth of our Speaker, i»
have this parliament dtctired, Ihnt it va*
far ftDUi our intention to incroach upon his toa*
jesty's prerogative, and thnt therefore it couM
Dot prejudice us, to menti'in the same resoli^
tion in an oddition to this Petition.
To which 1 answer, That that declaration
wn9 n general Answer to a Meiuge ftt>m his
mnjeity to us, by which his majesty expresKd
thnt he would not have bis pren^utive striiit-
ened by anynew explanation of MngnaChitrta,
orthe reat of ihesiatules: and therefore that
cipression of our Speaker's was then proper,
to make ithave reference to this Petition, then!
being nothing therein contained, but paiCtcuhv
Rights of tlieSnlijrct, nnd nothing at all con-
cerning his mnje>ty's prerogative, — Secondly,
That Answer was to give bis majesty sntisfaciion
of all our proceedings in general, and no man
can assign any particular, in which we hare
broken it; and this Peiiiiunjttitilies itself, that
in it we have not olTended ui:aiiist the pmtc»-
tation : and I know no reason, but that tliii
decl.iralion shouhl be ndded Co all our lain we
shall agree on this parliament, as well as to this
Petition.
The last reason given, was, Tliat we hare
varied iu our Petition from the words of Magna,
Charta; and therefore it «a» very neceisa^
that a saving should be added to this Petition.
1 answer, that in tlie statute 5 E. 3, S.t E, 3,
88 E. 3, and other statutes, with which Miigaa
Charts it coiiGmied ; the words of the statute
of eiplannlioil differ from the words of Magna
Ghana itself; the words of s'lme of the iis-
tutes of uiiplanauan, bcin^, ' 1 bat no man
' ought to he apprehended, unless by indict-
' men!, or due proceis of law ;' and the otijer
stHtutes differing from the words of Magna
Charta, tn many other psrticuliirs, nnd jet thera
is no taking in those stnliites, much less shniila
there be anv in a Petition of Ri^ht. These are
the Answers I have conceived to the Itcawni
of their lonlships, and the exposition, I appre-
liKid, must be made of the proposed wordj,
being added to oar Petition. And theiefore,
I conclude, ltij.t, in my opinion, we ipjy not
consent to this Addition, which I submit to
better judgments.
The Cunuiions afterwards appointed Mr.
GlanviJe and sir Henry Marlio to manage ano-
ther tTonlereiice to be had with (he Lords„coo-
cerning thesaid'inatter, and to clear jhe sense
of the Commons in that poiTit: The one nrgueo
the legal, the oiher the rational part.
Mr. GiAXViLLi's Speech in a full ConwulW*
of both Houses of Parliament, MoySJ. >"
the Painted Cluiiiiber at Westiointter.
My lords, I have in charee, fromlbe Com-
mons House of parliament {nbeteof I s"" '
member) to express tliis day before your l"r^.
ships Some part of their clear sense, IobcIbob
tOl] STATE TRIALS, 3 Chables I. iRIS— the Hbariy qf i*e Svbjat.
1^09
ixr point that h»(h occurred in tha great He-
tnte, obich hath so long ilepended in boih
boityn. — 1 shall not need man^ words to induce
or store the quesiion, which I am to liHndla in
a» fne conference. The subject matter of
ou meeting is irell tnofrn to jour lordships, I
win tberelbrc ont; look so far back apon it, and
to fer recollect summBrily the proceediDgs it
bull bnd, at may he requisite to present clearl^r
to jour lordships coasirierationii, the nature
ud conseqoence of tlie particular nherein I
Your lordships may be pleased to rememlier,
BOW that the Commaas in this pnrliament have
hmed a Petition (o be presented to liis ma-
jotj, a Petition of Right tighily composed,
iritimg nothing but trutb, desiring nothing but
jiaice ; a petition jumIt occasioned, a petition
nccnsary and lit tor these times, a petition
faoaded upon solid and substantial grounds,
the laws and statutes of this realm, sure rocks
to baild upon ; a petition bounded within due
limits and directed upon right ends, tn vindi-
cstt some lawful nndjusc liberties of the free
nljef^ts of this kinedom from the prejudice kf
TJolaTOOB pnst, and toiccure them from future
j^od hetAuse mv fullowing discourse must
w6ret chieflyi if not wholly, upon the matter
of this Pebuon, I slinll here crnve leave shortly
10 open to your lordships the distinct par^
whereuf it doth consist, and those ara four.
Tbefirti concerns Lei ies of Monies, by way
of Loans orothenviie, for his majesty's Supply;
(fcclariug, that no man ought, and praying tliat
no min hereafter be compelled to make or yield
uy gift, loan, benevolence, tax, or such like
durge, nithtiut common consent by act of
). The second is concerning thai Liberty nf
Fereon, which rightfully belongs to the free
ilbjectsofthisreiJul, eipressingit Id beagainst
the tenure of the laws and statutes of tlie land,
tkat any freeman ^ouM be imprisoned without
nsse shemed ; and then recitinn how this
libc-ny, amongst others, lialli lately been in-
fiini^d, it conclude ih with a just and necessnry
ile^ire, for the better clearing and allowance of
tliijpiitilege foi- the foiure.
3. The third declnreih the unlawfulness of
Wletting or placing Soldiers or Mariners to
wjoura in free subjects houses against their
"illl, and prayelh remedy ngainst that griec-
4. "ne iburlh tmd last aiinctli at redi'ess
lOBcbing Commissions, to proceed io the trial
■nd condemnation of offenders, and causing
them to be executed und put to dwth by the
lan^Iartbl, in times and places, when and
•here, if by the laws and statutes of the land
Ibej hod desenrd de^h, by tlie same laws and
■tiutes also they might, and by none other
ooeht to he, adjudged and executed.
Thij Petition, the careful house of romraons,
Wtwillingtoomit any thing pertiiiiiing to their
mtite, or which might advance their modciale
■ Mft jojt end), diJ heretofore offer up unio your
lordships' considenitia:
humble desire. That in _
tice, you would be pleased to join wiih them in
presenting it to his mnietly, that so coming
from the whole body ol tlie realm, the peers
and people, to him that is the liead of both, '
our gracious sovereign, who must crown the
work, or else all our labou^ is in vain ; it might.
B easy passage, :
1 obtain the
find the n
better ans'
Your iordshipa, as your manner is in cases
of 9U great impurtance, were pleased to debate
bb3 weigh it well, and ihcrruuon you pro-
pounded to MS some few Amendments (as you
termed them) by way of Hltcration, aliedging,
that they were oidy in matters of form, and not
of substance ; and that ihey were intended to
00 other end, but to sweeten the Petition, and
mate it the more passable with his majesty.
In this the House of CottimoDS cannot but
observe that fair and good respect which your
lordships have used in ynur proceedings with
then), by your concluding or voting nothing in
your bouse, until you had imparted it unto
them ; whereby our meetings about tliis busi-
ness have been justly auled free conferences,
either party repairing hither disengaged to hear
and weigh the other's reasons, and hoth houses
coming with a full intention, upon due consi-
deration of all that can be said on the other
side, tn join at last in resolvii'g and actirg that
which sljoll be found most just and necessary
li>r the lionour and safety of his, nnjesty aud
the whole kingdom.
And lunching those propounded Alterations,
which were not many, your lordships cannot
but remember, that the house of commons
h.ive yielded to u.ii accommqdntion, or cbnnoe
of their Petition in two pariiculars; whereby
they hope your lordships have obsened, a»
well Bi you may, they have not been affected
unto words and phrases, nor overmuch :ibound-
ing in their own sense ; but rather willing tit
comply with your lordships in all indifferent
For the rest ofyoor proposed Amendments,
if we do not miscuncdve your lordships, as we
are confideiit we do not, your InrdBhips, of
yourselves, huve been pleased to reliiKjuif^h
them with a new ovt-rture, for one only clause
to be added in the end or Ibot of the Petiiion, -
whrreby tlie work of this day is reduced to .one
simple head, whether that clause bhall be re-
ceived or not ?— This yielding of the comiuons
in port unto yoor lordships, of other points by
you somewhat insisted upgn', giveth u* great
assumnce, that our ends are one ; and putlelti
us in liope, that, in conclnsion, ive shall con-
cur, and proceed unanimously to seek the same
ends, by the sume pieans.
The Clause propounded by your lordships to
be .added ta the Petition' is this' :
* We hirmbly present this Tetition' to your
' majesty, not only with a care for preservation
■ nf Liberties, but with a due regard to leave
' int ire that Sovereign Power, nhctenitii your
303] STATE TRIALS. 3ChablesI. JOiS.—PriKeedwgiiitParUatiaUrtlatingto [HOi
o be applied onlj for pratectioa, wretf, mnd
lappincN of ibe people, '- — '-- — -—' >
there could be no danger
' m^fttj is inCnuted for tbe protectiun, Mfetj,
' and happineas of jour people.'
A ClKuia tpecious in shew, and imooih iu
words, but in effect and consequence uio*t diui-
gerotis, as [ hope to make mnsc evident: bow-
ever, coming ftam jour lordships, the house of
coiDinons took it into cbeir couuderaciunt, as
bectnie them, and apprehending upon the Gnt
.debate, that it threatened ruin to (he wbole
Petition, the; did heretofore deliver tome Rea-
«ons to your lordships, for which thej then de*
sired Co be spared from admitting it.
Til thew HeasuDs, jour lorashipt offered
Mme Answers at the lose roeeiini; ; which hav-
ing been Taiibfiilly reported to our houM, and
there debated as was requisite for a business
of such Height and importance, I itiuH say
truly to your lordships, yet with due reverence
10 your opinions, the Commons aie not tata-
fied with your argunieiits; and therefore Ihey
have cainmandtd me to recollect your lortj-
ships reasons for this clause, and in a fnir reply
to let you see the cuu&ex why they differ from
jou in opinion.
But before I come to handle the piniculars
vihereia we dissent from jour lordships, I uill
ill tbe lirbt (ilace take notice yet a little Turther,
of thai general wherein we all concur ; whicli
is, that we deaira not, ndtber do your lord-
sbijM, (o augment or dilslc the Ubertics and
Pnviiegesoftlie Subjects beyond the just aad
due bounds, nor to encroacb upon tbe limiis of
his mnjesty'i Prerogative Royal. And ds in
this, your lordships at tlie list meeting rx pressed
cleariy yuur own seniei, so wero your luid>liips
uut misiaken in collectinft the concurrent teu at'
aad loeauingof theliuuse of cuinmoni; ihey
oHen have protested, they do, and ever roust
Kiteat, That these have been, and shallbrlht^
iinds of tiKtr desires, to deiniuid sod seek
nothmg but thAt which may be fit fiv dutiful
And loyal subjects to ask, and for a itrucions
■ud just kills til grant ; far as they daim by
laws some libertirs for themselves, to do they
acknonledf^ a prerogativf, a high and juit
prerogative belonging. to tbe king, which ihey
luteQd not to diminish. And now, my lords,
being asMued, nut bv ttramed iufereiiccf, or
obscure collections. Out by [he express and
clear declaratiooi of both houses, thai our ends
are the same; it were amiierableunlmppiness,
if .we should fall in finding ou[ tbe means to
accomplish our desires.
My lord!, the heads of those particular Rea-
Kons which lyuu insisted upon tM lost day, were
only these :
1. Vou told us, that the woid ' leave ' was
of such a nature, that it could ^>e no new
thing to his miijescy.
i. That DO just eiception ceuld be taken to
the Kords ' Sovereign Power;' lor that as his
majesty is a kioc so he is a sovereign ; and u
be is a sovereign, w he bath power.
. 3. Thnt the sovereign power mentioned in
this clause is not absolute, or indefinite, but li-
mited aad regulated by the particle ' that ;'
ud 1^ word ■ kubtec^uent ' which restraint it
happiness of ibe people, whereby je intErred,^
' _ in the aUowance
That this clause contained no more in
substance, but tlw like eipresaiuus of our.
meanings in this Petition, which we bad fop-
merly signified unto Ills imyeaty by tlie mouth
of Mr. Speaker, .that we no nay intended to
encroach upou his majesty's sovereign power
or prerogative.
5. That in our Petition we have used other
words, and of larger eitent, tonchiog our Xii-
berties, than are contained in the statutes
whereoi) it is grounded : lu respect of which
enlargement, it was fit to Inre some express, or
implied saving, or narrative decluratory for the
king's sovereign power, of which oarnLtivs you
alledge this ckuse to be.
Lastly, Whereas the commons, as a main
argument against tbe clause, had much insisted
upon this, that it was unprecedented, and dd-
parliameiitary in a petition from tlie Subject,
to inhert a saving Kir [lie crown ; your lord-
ships brought for lustance to tbe contrary, tlie
two statutes of the 25 Ed. 1, coounoiiiy called
coiifirmalio eharlamm, and SS Ed. 1, known
by this name of Articuli tuper Charts ; in
both which Suuites there are savii^ for the
king.
Having thus reduced t« your lordships me*
mories, the effects of yuur own Reasons; I
will DOW, with your lonlshipl favour, come to
t1>c points of our reply, wherein I must hum-
bly beseech your lordsliips to weigh tlie rea-
sons which I shall present, not as tbe sense of
myself, (he weakest inrnitier of our house, but
as the genuine nnd ime sense of the wbol«
house of conimons, conceived in a busineM
there debated with tbe grcitiest gravity and so-
lemnity, with the (greatest concurience of OJM- '
niuns, and unanimity, tliat ever was in any bu-
siness maturely a^tnted in that house. I shiiU
not, pemdventurc, follow tbe method of your
lordsliips recollected Reasons in my aniweriug
to tlicm, nor labour to urge many reasons. It
is the desire of the commons, that llie weight
of their arguments sliould recompense, if need
be, the smallness of their iiumber. And, in
conclosiOD, when you have lieoid me through,
1 hope your lordships sbnll be enabled to cul-
Ject clearly, out of the frame of what I ihall
deliver, tmit in some part or other of my di«>
course there if a titll and aatiifactory answer
given to every putJcnlar reaaoo or objection
of vour lordships.
The Reasons that are now appointed to be
Iiresenled to your lordshius, are of two kind^
rgal and rational, of wluch those of the former
sort Me alloRed to my charge ; and the fint of
them is thus ;
Tlie clause nmv under question, if it be
added to the Petition, then either it must refer
or relate unto it, or else not; if it have no
such reference, is it not clear that it it needleM
and superfluous? And if it have such refer-
ence, it it not dear, that tbeu it must nredt
205] STTATE TRIAI^, 3 Chaubs I. iQ2S.—t^ Liberty ^ the Sulfftct.
[%»
, I would offer lu a vain thinj; ;
■nd tbetvTore tddngit for granted, that if it be
added, it would m^ to the Petivon ; let me
bweecb jour lonbfaips to obierve niih me,
•■d with ihe booK of coramong, what ftlreia-
tioD Mid qualificauoD of the same it will intru^
Hie Fetitioo of itself, limpIy, and without
Jin clMae, dedasth absolotel} tiie right* and
pritil^e* of the mbiect, in diiere points ; and
nmi^ tbe rew toacIiiD|; the levies of monies,
bjwajr of loans or otherwise, for his majut/s
•npplT, Ttial Mch lotiu and other charges of
^ hke mture, bj the laws and statute* of this
land, oogfat not to be made or laid withbnt
cfimnon consent by act of parliameat: Bat'
adnut this clanse to be anneied with reference
(to the Petition), and it must aecessarll; con-
dude and have this expoution, iThat Loons
and tbe like charge* (true it is, ordinanly] are
ipinst tbe laws and statutes of the r^m,
• nalcss thej be warranted by soiereign power,'
and tlmt ^ey canoot be commanded or raised
wkbaut aiaeiit of parliament, ' unlet* it he by
' ao*ei«^ power : What were this hut to ad-
nit a sovereign power in the king above tbe
laws and statutes of the kingdom 1
Another part of this Petition is, That the
free solgects of tlus realm ought nut to be im-
piaoned withoot cause shewed : But by this
danse • sovereign power will be admitted, and
kit entire to hia majesty, sufficient to control
the Ibrce of law, and to brinjr in this new and
dangenNU interpretation. That the free aab-
jecti of ihia realm ought not by law to be im-
pTHmed without cause sbewe«], ' ualeaa it be
' br Mivereiga power.'
fa a word, ttiis clause, if it (hould be ad-
mitied, would take away the efiect of every
part of tbe Petition, and become destructive
to the whole: ii>r thence wiU be tbe exposi-
tioa toocbtag the billeltiog of Soldiers and Ma-
riner* in rreenen's houses againK their wills;
attdtfacDce will be tbe exposition touchins the
times and pkicet for execution of tbe Law Mar-
tial, contrary to tbe law* and statutes of tbe
The scope of this Petition, as I have before
dbseived, is not to amend our case, but to re-
state ua to tbe same state we were in before .
whereas, if tfais clause be received, instead of
esendiDK (be condition of the poor sal^ects,
whose Qbrrtie* nf late have been miserably
▼iidaud by some ministen, we shall leave them
Wane than we fonnd them ; instead of curing
their woandi, we shall make them deeper.
We have set boonds to our desires in tbi* great
Twiiiii sii, wfaereor oa« i* Dot to diminish the
preropuive of tbe king, by mounrine it too
Wb ; and if we bound oursdve* on the other
tiae with tbi* limit, not to abrid);e the lawrul
ptirilqn of tbe nbject, by descend]
Madi (hat which i* meet,
can Uame n*.
My lofdi, tti tbtre is neniion made in the
!scendine be-
rh, we hope,
additional Clause of Sorereign Power, so i*
there likewise of a trust reposed in hi* majesty,
'.oucbing the use of sovereign power.
The word < Trust' i* of great latitude and
large extent, and therefore ou^t to be well
and warily applied and restrained, especially in
tbe case of a king ; there is v trust inseparably ~
reposed in the persoua of the kings of England,
but that trust is regnlated by law. Fm exam-
ple, when statutes are mode ti> prohibit thing*
not mala in le, but only aaia gttia prohiUta,
under certain forfdturea, and penalties to
accrue to the king, and to the iaformers that
ibatl sue for the breach of them ; the commqns
raifst and ever will acknowledge a regal and '
sovereign prerogative in the king, touching such
statutes, that it is in his majesty's absolute and
undoubted power, to erant diipensatinns to par-
ticular persons, wiih the clauses of mm obtlaale,
to do as they mij^ht have done before those Bta~
tutes, Wherein bis miyesty, conferrinf( grace and
favour upon some, doth not do wrong to others.
But there ii a difference between those statutes,
and tbe laws and statutes whereupon tbe Peti'
tion is grounded ; by those statutes tbe subject
has no interest in the penalties, which are all
the fruit such itaciies can produce, until by
suit or inCormatian commenced he become en-
titled to the particular forfeitures ; whereas the
laws and statuiesmeotianed in our Petition are
of another nature; there shall your lordship*
find DS rely upon the good old statute, called
Magna Charts, which declarelb and confirmeth
the ancient common laws of the liberties of
England : There sbalt your lordships aho Gnd
us to insist upon divers other nMst material
statotfi, made in the Lme of king Edw. 3, and
Edw. 4, and other &muus kings, for explana-
tion and ratification of the lawful rights and
[Irivileges belonging to tbe subjects of this
realm : laws not inflicting penaltie* upon of-
fenders, in malii prohibitit, but laws declara-
tiie or positive, conferring or confirming, ipso
facto, an inherent rigbt and interest of liberty
and Ireedom in tbe spbiects of this realm, as
tlieir birthrigbiB and inheritance descendable
to thair heirs and posterity; (Statutes incorpo-
rate into the body of the common law, over
which (with reverence be it spoken) there is no
trust reposed in the king's ' Sovereign Power,'
OT ' Prerogative Royal,' tn enable him to dis-
pense with ihem, or to take from his gulHects
that hinhrigbt or inheritance wliich they bare
in their liberties, by virtue of the common law
and of these statutes.
But if this Clause be added to our Petition,
we shall then make a dangerous overture to
confound this good destination touching what
statutes the king is trutted to controul By dis-
pensatisns, and what not ; and shall give an
mtimatioD to posterity, as if it were the opinion
both of the lords and commons aBsemhled in
this parliament, that there is a trust reppsed in
the kinE, to lay aude by his ' sovereign power,'
in some emergent cases, as wpU the Common*
Law, and such statutes as declare or ratify the
subjects liberty, oi; confer iatarest upon their
S!07] STATE TRIALS, 3 Charles I. 16'J8.—ProceedmgsmParliaineHtrdaliiiglo [$QS
To theie petition) ihekingmadc answer as be
pleased, somciimn to part, sometime) to tb*
nliole, BOmetiiiies bj denial, sometimes tij at-
icDt, sametimei absolutely, and wiuetimf* by
q^ualiG cation. Upon tbese rootiuas and peti-
tions, and the kin^s aniiveis to llieiD, wai the
law drawn up and iugrossed iii ihe slatote'roU
to bind tbe kingdom ; but tijis inconvenieuc*
was fciund in thii course, that ofteniiiiiea tbe
Bialutes thus framed, nere against tlie wnse
and nicBning of tlie conuitom, at whose desirei
cbey were ordained; and iheietort: in tlie 2 Ilea.
5, hading that it tended to the violation uf their
liberty and freedom, whose li^t it was, and
ever liad been, tliat au law should b« mad*
without their mseot; they then exbibited ■ pe-
tition to the king, declaring their right la thit
pBiticular : praying, that fiom ihenceibrtb no
law might be made or iu^oised as statutes, by
additions or diminulions to their luoiions or pe-
titions, that should change their sense, or intent,
without their assent ; which was accordingly
establi<-hed by adt of parliumeDt. Erer sinc«
tlien, tlie rigtit hath been, at the use was be-
fore, that the king taketb tlie whole, or leavedi
tlie wliole of all Bilb or Petitions, exhibited for
the obtaining of laws.
From this ceurie, and from the time when
first it became constaat und settled, we con-
clude strongly, that it is no good argument, be-
cause yc find Saving in acts of parhameiits be-
fore llie second of Hen. 5, that those Saviogii
were before in the petitions that b^at thow
statutes : for if tbe petiliani for the twtt Loans
to much insisted upon, which petitions, for anj
ihine we know, are not now extant, were never
so absolute, jct might tlie king, according to
tbe usage of those times, insert the Savinf^s in
hii answers; which passing from thence into the
Statute-Roll, do only nve some little colour,
but are not proof at aD that the petiiions also
were with Savings.
Thus much for tlic general ; to come now
to the particular statute of 35 £dw. 1, which
was a confirmation .of Magna Charta, with
some provisinn for the better execution of it,
ns Common Law, which words aje worth the
Doting. It is true, that statute bath also a
clause to this elTect, That the king, or his liein,
from thenceforth should take no AkU, Taxes,
or Prisaf^ of his subjects, but b; comman'os-
sent of all the rsalm, saving the aatient Aid*
and Prisage due and accustomed.
This Saving, if It were grvnied, (which iinot,
nor cannot be proved) that it was as w eU in the
Petition as in the Act; yet can it no way im-
ply, that it is either fit or sale, that the cJausc
now in quesCion should be added to our peti-
tion ; for the nature and office of a Saving, or
exception, is lo eiempt particulars out of a ge>
neral, and to ratify the rule in ihiop not ex-
empted, but in DO sort to weaken or destroy
the general rule itself.
Tne body of that law was against all Aids,
id Taxes, and Prisage in general, and was a
confirmation of the comrton law, formerly de-
clared t^UagDaChactiii the Saving was oply
persons, as those other penal statutes of such
uatuce us I have mentioned befure; whicb, as
we can by no lucnns admit, so we believe
suredly, that it is far from the desiiv of our n
gracious sovereign, to aflect so vast a tr
nhich being transmitted to h successor uf a
fereut temper, might enable him to alter the
whole frame and fabric uf the conunonnealth,
and to resulve that government whereby tliit
kingdom hath flourished for to many year
ages, under his mnjesty's most royal - -
and predecessors.
Our next Reason is, that we hold it contrary
to all course uf parliament, and absolutely re-
pugnant te the very nature of a Petition of
Might, con»sting «f particular), as ours doth,
to clog it with a general Saving or Declamtion,
to the weakening of tlie right demanded ; and
we are bold to renew with some confidence our
allegation, that there can be no precedent
^ewed of any such clause in any such peliiious
I shall insist the longer upon this particular,
and labour the more carefully to clear it, he-
cause your lordshins were pleased the last day
to nrge against us Itie statutes of 35 and 38 of
Edw. 1, as a^uments to prove the cnntrary,
and seemed not to be satisfied with that which
in this point we had affirmed. True it is, that
in those atatates there are such savings as jour
lordships haie observed; but I shall offer you
a clear answer to them, and to all otlier savings
of like nature that can be found in any statutes
whatsoever.
Tirit in the general, and then I shall apply
particular answers to the particulars of those
two Statutes ; whereby it will be ihoif evident,
that those examples can no ways suit with the
' malternowio hand. To this end it will be ne-
cessary, that we consider duly what that (|ues-
tiun is, which indeed concerAeth a petition,
and not an act of parliameui. This being well
observed, h} shewing unto your lordships the
difference between a petition for ihe law, and
the law ordained upon such a petition, and
opening truly and perspicuously the course that
was holden m fraoiing of suuutct before 3 Hen.
5, different from tliat which ever since then
hath been used, and i> still in use amongst us,
and by noting the times wherein these statutes
were made, which was about one hundred years
before 3 Hen. 5, besides the differences be-
tween these savings and this clause; I doubt not
but I shall give ample sHtiatactinn lo your lord-
ships, that the commons, as well in this as in
all tbeir ether reasons, have been must careful to
rety upon nothing hut that which is most tnw
and pertinent.
Before the second year of king Henry 5, the
comae was thus : when the commons were
suitors for a law, either the Speaker of iheir
house by word of mouth from tlien, the lords
house Joining with them, or by some Bill in
writing, which was usually called their Petition,
moved the king, to onjaiii laws fur the redress
of such iDiscliie6 or inconvenieucet, as w«re
fbnnd ffiaToiit unto the p«ople.
309] STATETRtAI^, SCiiABtEsT. lOQ8.—ae Vber^ if He Stiijeet.
ti Aid* anit Prts^ in paittcular, m well de-
■cribed and rcsliaincd bv ilie nordt, ' aocieiit
' ud ■ccnstoiDcd,' ibat there coulH be no doubt
vhat could be tbe dear meniiiiiE nad eicent of
tobim, waatteQkaowninitiaae da;i,aDdu not
jet foifotten.
Tbete Aida were three; froni ebe king'i te-
aants b; knighu serrice, due b^ the ciiinmon
liw, or general custom of the realm : Aid to
nntom the king'i rojral penon, if unhappily hi;
tboold be taken priioner in the wan: Ala to
make the ktn^a eldest sou a knight, and Aid
to many tbe kiDg'j eldat dnugbtrr once, but no
mare: Mid that those were Lhe onljrAids Imend-
(d to be lUTed to the crown b; that statute,
•ppeareib in tome cleaniexs br'tbe Charter of
king Johij, duted ni Runaing-Mefid the 15lh of
Jane, in the £flh year of lus reigtt, wlicrein
tkg; an enaneivted with an exclusion or ail
otbfT Aids wbotaoerer. Of this Clianer I have
hat one of tbe originois, wherEOu 1 beseech
Eir lordlhips to cast jour ejres, and give me
ye to read tlie Kry word* which concern
tUt peint. nese words, oij^ lords, arc thus:
'Nullam tcutigiuoi I'el nuxiliuro pouatur in
'regno nostro, niai per comtaune cooaiJium
* regni noatri, niu ad corput nosin^ta redim«>-
' dim, et priniogeaiiuni filioin nDatrum militem
' bcienduBi, et ail fUiam nnitram priniugcaitam
' Kniel inaritaDdam, et ad hoc oon 5«t uisi ra-
* Uouabile auxiliuio.'
Touching Pritage, the other tfainj; eiceptcd
by ihii Statute, it i* also of a partjcular right
to tbe crowD so well koown, tbnt it needpih ao
dcKTiplioii, the king being in pouessionof it by
ewy day'* usage. Tt it to take one tun of
■ine before the mast, and another behind tbe
mut, of erery ship bringing in abore twenty
lUDiofwine, and here discbar^og ibeoi bj way
ofmerchandue.
But oar i'«tition consisteth altogether in pai>-
ticnlara, to which if any general Saving, or
word* amoautlDg to one, ibouid be annexed, it
cannot work to confinu things not excepted,
wUch are Boiie,butto confound thing* in eluded,
■kich arc kQ the ^arts of tbe Petition ; and it
iButt needs bcf>et this datigercu* exposition,
ihti the Rights and liberties of tbe subject,
declared an^ demanded by tbii: Petition, are
not theirs absolutely, but nwmodo ; not to con-
liaue always, but only to take place, when tbe
king Is pleased not to exercise that ' sovereign
' power,' wherewith, this clauae admitted, be
is tfusted for the pratectiou, safety, and hap-
piness of lui people. AnJ tbui that birthright
and inberitiuice,tvbicb we ha*e io our liberties,
tball by ost own assents be turned into a isere
tenancy at will and suiTeranoe.
Touching the Staiote ofss Edw. 1. Articull
XChartas, the scope of that Sinlute, among
tbings, beioK to provide- for tbe better
obecriii^ and maintaining ef Mi^na Charts,
bath in it neverttaelesi two Savings for llie
king; the one paitieutar, as I take it, to pre-
jttTc tbe aniieiU jirisage, due ' '
TOt. ilL
I of wines and other goods ; the Other geoenl,
igniorj of the crown in all tiling*.
To tbne two Saviiifs, besides tbe Sirmer an-
rere, which rany he for the luoit pan upplied
I this statute as well at to the former, I add
these fiirther auswers : tbe first of iliese iwi>
Savttlgs, is of the same prisage of wiiiet, wbicll
s excepted in tlie 25 Edw. i, but iu some more
:leaniess ; for that bete the word, wines, ii ex-
pressly anncieU to the word, prlsa^r, which I
take (or to much to be in eipoeitiou of the
former law: and albeit these words, and of
other goods, be added, yet do 1 take it to be
but a. particular Savinp, or exception, wliidi
being quulilied with tlw words, uniieiil, due,
and accustomed, is not very daagerous, n ir cnn
idersiouil of pritage or levies upon goad*
of nil sorts at the king's will and pleasure ; bw
only of the old and certain cnstoiiis u|iau wool,
woilllels, nnd. leather, which were due to the
crown. Ions before tbe making of thi* atttute.
For the Tatter of tlie two sacing* in this act,
which is of die more unususl nature, aud sub-
ject to the more exceplioD ; it is indeed geoa-
ral, and if we may believe the concurrent rela-
tions of tbe Histories of tbow times, a* well
those that nrc now printed, as those tliat remain
only in manuscripts, if gave distaste rmm the
bci-iniirng, and wrougbt no good elFtict, but pro-
duced 5Ticlt distempers and troubles in the Hale,
as we wish may be buricil in perpetual oblivion;
and that the like saving In llicse anil future
times n)ay never breed the like disturbance :
6ir tirom hence arose a Uulonsy, that Magna
CharU, which detUiu'ed (he ancient right of tlie
subject, and wns an nbsolute law in itu:ll^ being
now confirmed by a latter act, with ibis addi-
tion of a general laving j lur tlie king's r^ht in
all things by lhe saving was weakened, and tha(
made doubti'ul. which was clear before. But
not to ilepart from our main ground, which is,
that taviugs in old nets of psrliament, before
the S H. 5, nrc no proof ihut there were the
like savings in tlie petitions tor those acts ; lat
me observe unto yuur lordships, and so leave
this point, tbut albeit this pctitiun, whereon ibis
act of aa Ed. 1, was groundud, be perihlied;
yet bntb it pleased God, that, tiie very frame
and context of the act itself, a* it is draiva up,
and entered upon the Statute-roll, and printed
in our book, duth manifestly import, that tbia
saving came in by the king's ansner, and was
Bolin the originalpctitioD of the lords and com'
raons; for it cometh in at tlie end of the acc
after ie wonl* (ie roy It veutj which com-
monly are the words uf ilie rny^d asecn
kind's raunsel, and the rest who wer
at [he making of this oidioiince, did ialfind tbe
same saving ; yet ii not (bat cimclinive, »<• lunig
us by the form of those tinivs, tbe king's answer
working upon the wateiiiiU of tke petition,
tnifiht hie conceived by siime to make the lair
effectual, though varying frum tha I'rume of the
The next Beasoo ahick the Coaoiuns have
«U] STATE Trials, 3 Charles I. ICSS.
comiutnded me to use, far which the; still de-
«ire to be «pnred rram adding thiti clause to
their Petition, is this s This offensive low of US
E. 1, irhich coiilu-mcd Mognn Chartn, nith a
Mving, rested not long \a pence, for it gave not
.thnt snlisfaction lo the lonls or people, as wns
T^uisite tliey should have in a case so nearlj
concerning them : nnd therelore about 33 or
31 of the m-nie king's reign, a. liitter act of jiar-
hament wits made, ivhercby it nas enacted, that
all men shoold have iheir Inwii, and iihcrtipa,
and free cu;toiii!>, as lurgel; and wholly as they
had used lo hnvo at any time when they had
Ihemhcst; and if any siiiotej had been made,
or any customs brought in to the contrary, that
all such statutes and customs should be void.
This wag the first law ^liich 1 call now to
mind, that restored Mngna Cbarta to the
original purity wherein it was first moulded,
albeit it hath since been confirmed nboie twenty
limes more by several acts of parliament, in the
rwgns of diver* most just and gracious kings,
Kho were most apprehensive of their rights,
and Jeatoui of their honuurs, and always
without savings; so as if between 32 nnd
34 Edw. 1, Magna Charta stood blemished
with many savings of the kind's rights or seig-
niory, which might be conceived to be above
the W ; that stain and blemish «'ns lorg since
taken away, and cleared by those many abso-
lute declarations and confirmations of thit ei-
cellent law which followed in after ages, nnd so
it standetli at tliis dH.y pureed and exem^ited
now from any such saving whatsoever.
I beseech your lonlibips tberefore to observe
the circumstance of lime, wherein we offer this
Petition to be presented to your lordships, and
by ns unto his nniicsty ; Do we otiler it when
MunaGbajtftstands clogged with savings? No,
mj lords, but at this day, when Intter and bet-
ter confirmations have vindicated and set free
that law from all eieeplions; and shall we now
■nnert another and worse saving to it, by en un-
necessary clause in that Petition, which we ex-
pect should have the fniit* and effects of a law f
Shall we ourselves reliotjuish or adulterate that,
which cost our ancestors soch care and trouble
lo purchase and refine > No, my lords, but ns
we should holdourseUesunhappy, if we should
not amend the wretched estate of the poor sub-
ject, so let us hold it a wickedness to impair it.
Whereas It was further uiged by your lord-
ships, That to insert this clause into our Pctt-
' tion, would be no more than to do (hat again
at your lordsliip'a motion and request, which we
bod fi>nner1y done by the month of our Speaker ;
and that there is no cause why we jhould re-
cede from that which so solemnly we have pro-
fessed 1 To this I answer nnd confess, it was
ibea in our hearts, and it i| now, and slialt be
ever, not to encroach on his mnjesiv's sovereign
power. But I beseech ^our lordships to oV
aerve the different occnnim nnd reference of
that protestadcn, and of this cleuse.
Thu was a general Answer ton general Mes-
Mge, which we received from his majesty, watn-
iiHiu not to UKroach upon hii Prerogative; to
.^Proceedings in ParHameut relatiag to [212
which, like dutiful and loving subjects, we an-
swered at full, HCcordiJig to the integrity uf our
own hearts; nor nastbere any dontierin mailing
such an answer to such a message, nor could
we Rostver mare truly or more properly : but
did that Answer extend to acknowledge ' a so-
vereign poner' in the king, above the taws and
statutes mentioned in our Petition, or controtd
the Liberties of the Subjects, tlifrein declared
and demanded ? Ko, my lords, it hath no refe-
rence to a[iy such purticutars ; and the same
words which in some cases may be fit lo be
used, nnd were unmannerly to be omitted, can-
not in other cases be spoken, but with imperii*
nency at the Icnst, if not with danger. 1 have
formerly opened my reasons, proving the danger
of this clause, and Am commanded to iUustral*
the impertinency iif adding it to the Petition, bj
a familiar case, which was put in our house hj
a learned geiitlemoD, and of my oHn robe: tte
case is thii, two manors or lordships lie adjoin-
ing together, and pcrcliai«;e inlermiied, so as
there is some dilflculty lo discern the tme
bounds of either; as it may be touching the coit-
fincs where the Liberty of the Subject, and the
Pru-ogative of the Crown do border each upon
the other ; lo the one of the riianors the king
hath clear right, and is in actual possess ioD of it,
but the other is (lie subject's. ' The king beine
mis-Informed, that the subject hsili introded
upon his majesty's manor, asksth his subject,
ufaetherhc doth enter upon his majesty's mnnor,
or pretendeth any title to it, or any part of it.
The Subject being now justly occa^oned,
maketh answer trulv to tlie king, that he hath
not inlmdcd, nor will intrude upiio his maj^ty's
manor, nor doth make any chum or title to ir,
or any part of it. This answer is [iroper and
fiiir; nny, it were unmannerly and ill done of
the subject not to answer upon this occasion.
Afterwards the king, npon colour of some
double or single mailer of record, seiietb into
his highncss's hands, upon a pretended title, the
subjtct's manqr; the subject then exhifaileth
his Petition of Right to his majesty, to retain
restitution of his own manor, and therein layeth
down title to his own manor only ; Were it uot
improper tind absurd in this case for him to tell
the king, that he did not intend to make nn*
' ' majesty's manor, which la
■'•■'--aita'ere. This case,
r , purpose well,and no-
Ubly eip[aii\ the nature of our Petition.
Why should we speak of leaving entire ilia
king's ' Sovereign Power,' wliereon we encroach
not, while we only seek to recover ourowfi Li-
berties and PriviltE^s, which have been seized
upon by soma of the kine's ministers P If oar
Petition did trench actually upon his majesty^
prerc^tiye, would our saying, that we intended
It not, make the thing otherwisi; than the
truth i
My lords, there needeth no Prutcitalioo or
Declaration lo the contrary of that which we
have not done ; and to put in such a Clanae,
cannot nrgne less than a fear in ua, as if we bad
invaded it : which wa held Nured, and aie «^
S13] STATE TRIAI^, 3 Chablu I.
■DTEd, thnC »e hnre not touched eiiber in our
words or io our intentious. Aiid touching yiiur
lordships obi>erv*iion upon the ivord (leave), if
il bt iioE a prupei word to give any new thing
n the Liog, sure vie ere, it u a word danecrous
io auotber sense ; for it may amount, viuhnut
allqueslion, U) ncLnowlcdije an oldrij^htof' S4>-
' Tercign poxcr'inhji majesty, above those Inw*
Mid statutes whereon ouly our liberties are
(bunded; a doctriue which nc most humbly crave
your lot^sliips leave fredy to protest against.
And laryour lordghiij'f proSenng, tliat some
taving should be requisite for prescrration of his
nijjmy's' soverrign power' \a respect our Peti-
tion runneth in larger words than our laws and
UBtutesnliereonwegroundit; whht is ihisbutft
dearcoufession by yaurIords1i'rp,thaI this clause
vas Intended by you to be that saving p For
'other ssting Uian ibis ws find noHenilercd by
;uu: and if it be such a snving, how can il
Hind with yuur lordships other arguments, that
it should be of no olber effect llm.ii our former
(ipressioii to bis majesty by the mouih of aor
SpcaLer? But I will not insist upon collections
of this kind ; I will onW aliew you the reason*
oi' the commoDS, why this Peution needetli no
nch saving, nlbeit the words of tliese statutes
be eiceeded in the declaratory part of our Pe-
tition : those cliiugs that are within ihe eijuitj
ind true meaning of a statute, are as good laws
u those which are contained in the express
Inter, and therefore the statutes of the 42 Ed.
3, 36 H. 3, ttot. Par. ii. IS, and other the ita-
lutei made in this time of king Edw. 3, fpr the
nplination of &Iagna Charts, which hath been
» often vouched in tliis parliament, though
ibcj differ in words from Magna Cbartn, had
Ho saving annexed to any of them, because they
«nncied more ihnn nas contained iu elTect in
lint good law, under the words, ' per legale
'jadiciuiD parium 9uorum,autper legem terrs;'
Mich by these loiter laws are expounded to
inporj, that none should be put to answer wlth-
•ut presentment, or matter of recnrd, or by due
process, or nrit original ; and if othetnisc, it
■hould be void, and hnldeo for error.
Il hath not been vet shewn unto us from your
Iwdsliipt, that we nave in any of our expres-
■ions or applicntions strained or misapplied any
of the lans or Etnliit«s whereon ne ao insist ;
■Bd we arc very confident and well assarod,
ibatiia such mistaking can be assigned in any
point of onr petition now under question: If
ibtrefore it do not exceed the true sense and
CDDStruction of Magna Cbartn in the subsequent
bos of explanation, whereon it is grounded,
■hit reason is there to add a saving lo this pe-
tition more ihaii to those taws; ^nce we desire
to transmit the fruits of these our labours lo
poMeritji, not only for the justification of our-
leKes, m right of otir present and their future
hberties, but also for a brave p^pression and
petpelual testimony of that grace and justice,
ahicb we assure ourselves we shall receive in
luj majesty's speedy and cle.ir answer ? This is
the thag we seek for, and this is the thing we
hoped for, and this is the thing only wilt settle
1G23 the L&erty cf Ote Subject.
[3U
such an unity and co'olidence betwixt his ma-
jesty and us, and raise aucIi a clicarfulness In
th,e hearts of all Lis loving subjects, os will
make us proceed unnnimousty, and wiih all
expedition to supply him for his great occa^ona
in such measure, and in such way, as may
mflbe him safe at home, and feared abroad,
Sir Uinry Martin. My lordt, the work of
this day, wherein the bouse of cnminons harh
employed the gentleman that spoke last, and
myself, was to reply to the Answer, which it
hath pleased the Lord-Keeper to make to thos*
Reasuns, which we had offered to your bnl-
ships consiileration, In justification of our refu-
sal, not to admit iuta our Petition the Addition
commended by your lordships. Which Rea- .
sons of ours, since they have not given such
satisfaction as we di^ired, nn<l nell hoped, as
by the Lord-Keeper's Answer appeared ; ic
was thought fit, for our better onicr and method
in replying, to divide the LortJ-Kecper's An-
swer into two parts, a legal and a rational i
The reply to the le^al your lordships have
heard, myself comes incrusteH lo reply to tha
rational, which also /consisted of two branches,
the first deduced from the whole cmitext of the
additional clause, the second enforcdl oiit of
some paf t
In the first were these Reasons, That the
same deserved our acceptance. 1. As satis-
factory to the king ; 8. To your lordiiiips ; 5.
Agreeable to nlin^t ourselves had oltcn protest-
ed, and professed expressly by the mouth of
1 must confess thrie motives were weighty
and of great fgrce ; and tlierefore, to ai'Oid Mis-
understanding and misconceit, wliich otherwise
might be taken agninst the houK of commons
upon the refusal of the propounded Additiori,
it is aecessnry to state the question rightly, and .
to set down the true didereuce between your
lordships and us. Now, indeed, there is no
difference or question hctiveeli your lordshins
and us, couccrning this nddidonal clause in the
nature and quality of a propssitlon. For so
considered, we say it is most true, ond to be
received and embraced by us, ' in toto et qua-
* libet parte el qualibet syllaba;' yea, and went
that the question, we should add lo the Addi-
tion, and instead of due regard, say we have
had, have, and ever will have, a special and
singular regard, whereto leave entire Sovereign
Power. But this were to intimate, as if we
had first crojjt, and then left it ; but our regard
was lo acknowledge and confess it sincerely,
and to maintain it consliintly,' even to tn0
hainrd nf our gonds and lives, if need b^
To which purpose your lordships may be
pleased' to remember that strict Oath eveij
member of the bouse hath taken this very ses-
sion, in these words : ' 1 (A. B.) do utterly
' testify and declare in my conscience, That
' the king's highness is the supreme sovereign
' gnvernor of this realm in all causes; &c. and
' to mv uimost power will ussisi tuid defend all
'jurisdictions, privileges, prehemioences and
amborities, granted or belonging to the king'*
fI5] STATE TRTAI^, SCbaklmI. Itm.'^PivCKdmgim Par&menrrtJatviglo [J»
' highness, oruiilteilor nnnned, to iheimpctial induce u9 to accept it. But ander bit lant-
' cronn uf this reHlm, &C.'
So ItiuE yaar lonJaliiijs n««d not to borrow
fcnm our pmiestatiuiu nny exbortations lo us,
tu eutenaiii u writing in assistance of the kiiig't
EuvtTcign power, siuce vie tlaiid ublit;ed by iTie
uosi siicrcd build of a stilcmn oiilh, tu nssiat
and defeiiil the smne, if cnuse or occnsinn so
■ef[uired. So ihut Uie only question between
^our iDtdsbips and ue, is, whether this clau^
tli'>uld bu addeil (o ouf petition, nnJ received
iiilo it ns partlLereoff Wliich to do, jour lord-
ships reusoii's have not penundcd us, becnme
•o to udiuit it, wera tu overthrow the fubric
and substance of oni Petition of H^t, and to
nnnihilate the right preteoded b; us, aiid ibe
Petition itsell'iu eOect : For these words being
added lo our Petition, vii. ' Wc iiumbly present
' this E'etition, &c, nith due regard to leave
' entire juur soverei^ti power, &c.' do include
Kuuiifestly an exception to our Petttiou; and
wi exrepiion bciug of the nature of the tliiu;
Kbefeuntu it is an exception, ■ excepiio est de
' regula,' must. of necessity destroy the lule or
petiiiou, so far as to the caac excepted; ' Ei-
* ceplio tifinat r^ulnm in coiibus non eiceplis,
' in casibua exceptui deslruit regulam.' Then
ibis cunttruclion foDoweth upon our Petition
tiius entargtu), ttiat after tie bare petitioned,
that no freentan slmuld be compelled by iinpri-
■oament to lead or coutribnle money to his
MiaJBiiy without his assent in parlionieiit, nor
leceive, agaiost his will, Suldiers iniu ius liaus«,
or undergo b coDUoission of Martial Law for
life or member la lime of peace; we slimild
add. Except bis majesty be .pleased to require
our moneys, and imprison us for nnt lending,
and seud soldiers into our iiousei, and execute
■s by martial law, in lime of pence, by virtue
«f hi^ sovereign power : which coastruction, as
it foUoweih necessarily upon tliis eulaifeotent,
to it coocludeth against our right in ihe an-
nibses, and utterly fru-iiralcth ejl our Petition;
neither mtiy it seem strange, if this clause addi-
tional (which of itself is in quality of a prano-
wtinn we confess) being added ti> our Petition
(which also is trne).should overthrow iha very
Irame and &bric of it, seeing tba lo!;icians
tabir liuowled|(e of sticb a fallacy, called by
ihein, ' FoIIbgib i bene diiiais ad mala con-
' juncta,' Horace the poet givetb an instance
tu tlus purpose, in n pnmter, who uhen he had
painted tha heud of a man according to art,
would then join to it the iirck of a horac, and
•o raarr the one an<l the other ; nliereas each
by itseCf might have been a piece of right good
workmanship.
The second hmnch of my Lord-Keeper's
Bitionul part was eo forced out of the last words
of this Addition, by wbicb his lordship laid,
that tbey did not leHve intire all sovereign
Sower, but that wberewiih hismaje!>tyis trusted,
>i the protection, safety, und Imppiiiod of thJe
people i ni if, Jiis Inrdship would infer, that
eovereignpoH'er wherewith, &c. in this place to
be Icrmiiitiin diaiiautntem, a term of diminution
nr quali£catioD, and in that cuuMderaiion might
ship's correction, we cannot so iutrrpret ii
for lirst we are assured, that there it no sove-
reign power wherewith bis mnjesly is trustot,
either by God, or mnn, but only that which is
for the protection, safety, and bappinets' of his
people; and therefore, that limitation can make
no impression upon usi hut we conceive it
miher in this place to have the force ternu'n*
aduugcniii, tu be a term ofiinportaat advantaga
ngaiust our Petition, a term of restriction, and-
thai wJieMsoever his mnjetty'i soveMign po*N
should be exercised upon us in all or any the
paHiculars mentioned in the Petition, wv
should, without further enquiry, submit there-
unto, as assuming and taking It pro cs/Mrua, it
conduced to our safety niM bappinets, &c
Since tbcrelbre, . (as the PetJiion u now con-
ceived] it carrieth the form and face of a pic-
Itire, which representcth to tlie life the pressore*
and grieruncM of the people, with the easy
remedies ; and tberelbrc we hope that his ma-
jesty, casting upon it a Kracious eya, will com-
passionate his poor loyal subjects, aod-aflord ft
comrortuble answer.
I do humbly praise your lordships not To majT
or blcmiib the grace and bee of this picture,
wiib this unnecessary addition ; and unnecef-
SBTT I prove it to be, according to that mle,
* ^ipresito ejus quod tacite inest nihil ope-
' ratur.' Andaovenrign powpr, in cases whera
it haih place, and ought to be used, ie always
necessarily tinderslood, and thou|th not ex-
pressed, yet suppliad by reasonable intend ouuit,
or by the opinion uf all learned men.
And therefore it nether is nor eau Im by ur
expressly included, especially in this Petition,
where the Addition thereof would make Such »
confusion of the whole sense and substance.
The £in';'s Sovereign Power and Prerc^ativft
is always nlile to save itself; andif it worenui^
we muti, wirhoiit this Addition, save it to our -
utmost powers, if we will save our oath,, and
save ourselves. The true state of the aaiatf
upon what grounila your lordships are so at
nest to uTj^e upon tliein this Addition to be in-
serted into iheu- Pitilion; thev nothing dmibt,.
but the same proceeded out oi a solicitude aDcl
fear, which your lordiliips have, lest otherwiae^
tlie simple and absolute passage of tliis Peiitioa
might be construed hereafter in prejudice of
his majesty's sovereign power: and this vour
lordihips sidicilude and fear proceedetb Iram
your love, as the poet saith. < Re« est soIUcitt
' plena timoris ainor.' But 1 humbly pray your
lordships to exooiine with us, the eroundi of
this your solicitude and fear; which grounds
must Deeds be laid either upon the words of ih*
Petition, ur the intention of the petitioners.
Upon the words there is no possibility to lay
them, for tbciein is no mention made of the
So vf reign Power; and were tlie word* doubtful,
as tlius, VYe pray the like things be not don*
hereafter, uoder pretext uf your majosty's so.
lereifn ^wtr ; jat ia respect of the prote»^
Goo;;lc
11T] STATE tSlALS, 3Cii.mi!s!. ieflS.-^£tSer9</''^^^^- ' [A*
Uipret^ini;,
and subscqne
ID the PeCiQUB, lach doobthl word*
nublj to bt incerpreled mlj of nieh lomei;!)
fomi (S wn^ applicable to the coms wbtnrin it
m eieciscd ; aad of sucb wvereitn power as
ibnnM b« juKl; practiMd. BoE there nre no
ad doubtfol wordi, and (facrefereh follaweth,
llat jour Inrdibius lear and solicitude must be
Cdrd upon tneiatcntioTi of tlie p«utiaiieri.
joar lonlibips will know, tliat the' house
vfcouitions i> not ignorant, that in a lession
(fniiiMDcot, ifaongh k contiane so manj
VMS, isthn bath done days, nt there is oo-
Iking prim ct mnfn-isf, but all Ihings are held
md lokeit M done &t one time. ir»o, wbac a
«nn{e collection wu this, that atthesaine
nm: theboase of cmnmons iboaM oblige I hem-
drrt, bv a feaffol abjuration, to aisiit and
defend sll privileges and prerogatives belonging
ulle kingj and at ibeaanic time by ■ PetitioD
[nuiioialT courejed) endeavoar or intend lo
^mt and deprne the king of some pren>-
ptira belonging to his cronn i If therefore
■aril far and solicitude can neitber be srounded
ln» the wardi of the fetitron, nor inlciiiion
MttiE pctitjimen, I hambly prayjoar lordshipt
« Itj tfaem aside. Aa ne do belien (hat the
fnpnition of this Addition ftont ]>our lordstn^s
m not onl J exanaUe, but commendable, aa
rxKceding ftotn yonr lore ; so now baTisg
tord tiiir reasoiia, your loidshTps would real
tUBfied, (fast oar ratiia.il to admit them into
aor l>et^ii, proceedeth ftom the conacience of
thint^rity attd aprithtneaa of our own hearts,
ttat we in all tbia PetnioB have ao sixji end to
ah«e or dinitiniah the king's Just prerogntiTe,
Aad so much in reply to that rational part,
oWebj taj lord-keeper laboared to peranade
dKcntenainroent of tfara Addirion.
Thit being done, it pteeaed the Houae of
CtauDon* to iBstnict and finniiih me with cer-
ain lUatoni, which 1 aball nae to yoor bnhbipa,
tt procure yonr absolute conjoDctioit with us
ia pRsenting this Petition ; which albeit I
catiDot set forth according to their worth, fend
iheiiMrnctionagiven me by the boose, yet, I
Iti^ their own wei^t will ao press down into
yoor iordabips c<;n3ciencn ■ndjadgrneMs, that
•irtuwt farther aoople, jwa wifi chrerfiilly
unDtnafE to accidnpanj this Petition with your
tffit Dabts presance.
A penaiuM. The fint Mgumenl
Mtcotnrainded to move your hjnhhips,
drmi from the coosideTatiDn of the persona,
■bidi lie petitionan, the House of Commona ;
ihaue, whose tevper, mtldnesa, and moderti-
M ia ikia parliauaM haifa been such, aa we
AmU he uuthMkftil and in^OM lo Aiaiighty
Ood, if we abooht oM achiMwledga his gwd
bad apoB m, o^on aw btoguea, ufon oar
kMfUffracwreri.Dodavbt, by our lale solenM
«d ^klic huniliuiai and uamra.
Tbism
■a (ke im piMCf it nwy b*
■hat paaaion and- disleaaper rnmij aaaMbori of
tb hoote airived thitber, what boaama, wbat
podieti M of cDmptiKtni ami lamenuibla
rewithi
griflTuieeB tbe most part bronght tfailber, aad
those every day renewed by letter* and packets
from all pana and quartera i you know the oM
proverb, ' Uhi dolor ibi digitna, ubi amai ib^.
' ocnlos :' it is hard to keep our fingers ftwa
oAcn handhog the parts ill affected^ bnt yet
our moderation overcame our passion, onr dis*
creiion overcuneouraGfection,
This moderation also will ibe better appear,
if iu cbe second placa it be not (brgollen, how
our ancestors and predeceasora carried them-
geh«s ia puiliamenlt, when opon lighter pro-
vocations, lets would not serva their tnrna, bill
new severe commiasioua lo hear and determine
offencea against their liberties, pithlic ecdeaiaa^
tical Gtffses, or eicoimnonica turns againat the
authors or actors of such viulationa, actrtns'
ttons, eon d em nations, eiecotious, bniushments.
But ufaet have wo said all this pBrliament i W«
only look forward, not bsckttard ; we desiW
amendment hereaflar, no man's pnniihnient fat
aogiitdone heretofore; nothing written by u>
in blood, n»j, not one word apokeu against
any man's person in (fispletsaie. llje Cauda-
aion of our Petition ia, that we may be better
intrcnied in time to com* i and doth not this
motierate Petition deserv« yoitr lordships chfar-
fhl conjoDctlan, ' ei coDgmo et condigno?' If
a worm being trodden upon coald speak, ft
worm would any. Tread upon me no more, I '
pray you ; Higher we rise nor,lowor»ecanaot
descend ; and thus noch ne tfaiiik in modesty
may vrril be apokeu in our own commendaiioil
thence to move yom" lordships to loocltaafe m
your noble company in ttaia Petition without
sBrcbnpng it with this Addition.
4 Itji^ore. OvT next argumentis drawn S
ttmport, from the unaeasonableness of the time.
liie Wiseman asitfa, ■ There is a time for all
* things under ihtf sun ; Tempni iduir.' And i^
ill (he Wiseman's Judgmeur,.a word spoken ia
its due time be preuous as gold and silver,
then an unseaaoDable titne detracts as muck
from the thing or word done or tpoken : w«
hold (under yoar favonrs) that tbn time ia not
seasonable now for this Addition. It is tnir.
Chat of itself, sovereign' power is ti thing al-
ways so sacred, tliat to handle it otherwise than
tenderty, is a'kind of sacrilege, and to speak of
it otherwise than reverently, is a kind of blaa-
phemy. Bot every vulgar capacity is aot so
afiectcd ; the most port of men, nay almost alt
men, judge, and esteem all things, not accord-:
ing to thejr own intrinsic virtue and quality,
bat according lo their inmiedinte eSectv and
operations, which tbe same things have upon ^
them. Hence it is, ihat Itefigion itself receiv^
•th more or Uas credit or approbation, as tbA
teachers or professors are worse or belter (
■ yea, if Ood himself send averywet harvest or
seed-lime, men are apt enough lo censure di-
vine power. The sovereign power hiith not
now, for the prneot, tbe ancient amiable as-
pect; irt respect of some late sad inBnences:
but by God's grace it wUl soon recover.
To intermix with this Pctiiion any men- .
thm of Sorereiga Power, reiut tU ttantibta.
tlO] STATE TRIALS, SChauuI. ltm.~Itvctedii^ in ParHmait Ttbuiiig to [390
trben angc^ men sbj, tovereiga power hath
bean abuted, and the miHt niocierate wisti it
bud not been so used ; ne hold it not seasona-
ble, uuder jQUr Jordshipi correction,
A loco. Our next argmneot is drawn i loco :
we think the place ahere your lordships would
have this Addition inserted, viz. in the Petition,
no convenient or seatonuble pbce. Yimrlord-
ahips nill easily believe, that thia Petition will
run tlirough many hand*, every mun nilt be
desirous to tee and to read what thrir knights
itnd burgesses have done in parliiiment upon
their complaints, what they have brougliChome
for their live Subsidies : Jf, in perusing of this
PetiliuD, they fall upon the tneotian of sovc'
rttga power, they pre^ntly fall to ar^uini;, and
reasoning, and descanting, what sovereign
power is, wb«.l is tlie Utitude, whence the ori-
ginal, and ubere the' bounds } mtb many such
curious and captious quetlioDS ; by which
coune,'5arereigu jioiver ii little advanced or
' advantaged : for 1 have ever been of opinion,
that it is then best with sovereign power, when
it is bad in tncit veneration, not whCn it is
proved by public hearings or examinations.
Our last Argument is drawu from our duty
•nd loyalty to his majesty, in consideration
whereof, we are fearful at ibis time to take this
Addition into our Petition, IihC we should do
his majesty herein some disservice : with, your
lordships, we make the L're;it council of the
king and kingdom ; and though your lordships,
baving the happiiie^ to be nt;ar his lusjesty,
know other things better, yet certainly the
state and condition of ihe scverat parts for
wliich we serve, their dispositioiM and inclina-
liiiii'i, their apprehensions, their (ears and jea-
lousies, are tlt^t known unio as. And here 1
Srny your lordsliips to give me leave to use the
gnre culled lUlieenlia, tliat is, tp insinuate
and intimate more than I mean l<) spcuk. Our
chief and principal end in this parliament, is,
to make up all rents and breaches between
the king end tiis suljecL<, to draw tliem, and
,knit them t(%etlicr, from that distance, whereof
the world abroad takes too much notice, to
work a perfect union and reconciliation. How
improperly and unapt at this time this Addi-
tion will be in respect of ibis end, we canuot
but foresee, and therefore shun it ; and do re-
aotte, that it is neither agreeable to the per-
•ons of such counsellors, of whom we are, nor
answerable to that loie and duly which we
owe 10 hb majesty, to hoiatd an end of such
DDspeokable cunsequenoe, upon the admit-
tance of this Addition into our Petition, where-
of, as me hnve shewed, ibe omission at thin
time can by no means harm llie king's prero-
Cativr, the expression may produce mani^ld
inconveniences. And theretore, since the ad-
mittance of yoar lordships Addition into our
Petition is Incoherent .and incompatible with
tlw body of ike same ; since there is no oeces-
tary use of it for the saving of the kin^s Pre-
native; since the moderation of our Petition
deserreth your lordships chcarful conjunction
x^ at; fince tbii Addition is unseasonable
(or the time, and ioconvenitnt in respect of (ba
place where your tordship* would have it in-
srcted ; and lastly, may prove a disservice to
his mi^esty ; J conclude with a roust alTec-
Cionate prayer to your lordships, to jpin with
the bouse ot comniona, in preseuliiie this Peti-
tion unto biv sacred majesty, as it is, without
this Addition.
Monday, Q6tli of May, the Lord Keeper mado
this Speech nt B Conference.
Gentlemen i Ye that are knights, citizen*
and burgesses of the house of coiumuus, I have
many times this parliament, by command from
my lords, declared the great zeal and affection
which my lards have to maintain and nourisli
the Kuud concurrance and correspondency
whicli liath hitherto continued betweeu both
houses, that there might be a happy issue in
this great business,. for the cotumon good of
ihe king and kiugdoiu. Now thM which Z
have lo say this day from my lords, is, to let
you know, this fair proceeding is not a profes-
sion of words only, but really and Indenl con-
cerning the Petition, which bath been long in
agitation, as the weight of tlie cause required.
Since the last conference, my lords have taken
it into their serious and Instant consideration,
and at Ieng;th ore fallen upon a resolution,
Hbich I UQ to acquaint you with.
Tl« lords have unanimously agreed with ^ou
in omnibuM, and have^nted, tliai tliey will join
ivith you in your Petition, with the only alter-
ation of the word ' maaus ' to be put instead
oftjieword 'pretext;' and for the word 'uo-
' lawful '. to be put out, and in place thereof
to add ■ not warrantable by the laws and sta-
' tutes of the realm.' Which two alieratiimt
yourselves consented unto. So that coucctn-
mg lliis business diere reniains nuthiug dow,
but tlist having the Petition in ^ur hands, ye
VI ill, if ye have not Glreadv,vo(eitBs they have
done, and so prepare it for bis majesty ; and
my lords will take order, that the king be
moved for a speedy access to present the sama
to Ills majesty.
And, after some pause, be said. There rests
one (bins whioh my lords have commanded me
to add. That in re^rd this Pitition touchetb
upon certain charges raised by tlie lords tlente-
nanls, and oilier persoiis, many times fur good
uio, for ib« senice and safety of the kingdom ;.
(hat ye take it into your care and considera-
tion, 011(1 to provide a law for assessing of suf^
chafes, as die occasion of the time ^liall re-
The Lords and Commons being thus happily
accorded, the Petition, with the aAiresaid
Amendments, was read in the bouse two seve-
ral times togelJier : then it was voted upon tlw
question, and that it should he ingmssed, and
read the third time, and the house to sit in tbft
nfti'moon till it was ioi>rossed, and read, and
oriien.'d to be presented to the king ; to whicb
thete was nut a negative rote.
Wednesday, %a Uay, tlie Lord* and Cuni-
«)
STATE TRIAIS, 3 Charles L
of
mils liad a Conference about the
delirery of ihe Petilion ; and sir Ed. Coke re-
portid, tJiai ilicir lordahips nvrc agmd, Tliac
M addibofl or prefnce lie used to the king, bat
dat llie Petrlioa be preferred lo his mtijesty
Lt CDmmsnd of the lords aod commons ; and
hs miJMiy be de&ired, that to content his ffo-
jU, he woold be ple.i«cd to give his gracioui
Aiuwer in tiiil parliaaieiit.
Mondaj, 9d June, the King came to the
FirllameDl, and spake thus iu brief to both
GeotktDen ; I am come hither to perform
■jdn^; 1 think no man can think it luug,
MKc 1 have -not taken so manj dajs in an-
taering tlie Fetltioa, at jou spent weeks in
AanuBg it : -and I Bin come hitherto shew jou,
llal as well in foniul [hiogs dt in essential, 1
lieure to give jou a» much cooteal u in me
its.
After this, the Lord Keeper spake as Ibl-
Imeifa:
Mj lords, and jou the knights, citizein, and
kiTfeaMi of the Iwuse of cotDmans, bis majeU;
bitb commanded me to laj onto you, tliat he
likes il in pM>d part, that in consideiation of
Mtliif jour onn LU^erties, jrou hare generatlj
TMfessed in both booae)', that jon have no in-
MliaD to le*s«n or diiDinish hii maieitj's pre-
nptirci whereia a« yon have cleared your
iWB mtentipna, so now hit majesty come* to
dnr Ha, aod to subscribe a firm leaKue with
' kit people, which it ever likety to be most con-
uanl and perpetual, when the conditions arc
tqoil, and known to he soi these cannot bo
ii a more happj eUate, than when your liber-
lics shall be an oraameot and a ttrenglh to his
majesty's Prerogative, and hb Preroealive a de-
feoce of your liberties ; in thii iiia majesty
doubts not, but both he and you shall take a
■olual comfort hereafter; and, for bis part,
it a resolved to give an etample, in the using
•f hii power fbi tha preservation of your Ij-
ketties, that hereafter ve sball have no cause
tommpLun. This is the sum of that nbich I
w to lay to you from tiis majesty ; and that
*1iich farther remains, is, that you here read
JiiBt own Petition, and his majesty's gracious
TbE PeTITIOH of RlOHT.
Ike PniTiotf eihibitad lo his majesty by the
lords spiritual and temporal, and commons
To [he King's most excellent majeaty.
I. "HomUy >bew unto our sorermgit lord
b king, (lie lords spiritual and InnpoTal, and
ommans in parliament assembled, that where-
ai ii it declared and ^octed by a statate made
isthe tiaie of the re^ of king Edward l,coin-
BKily called, ' Etatutum de tollagio non cun-
' UMndo *,' that no ullage or aid shall be lard
* M Bdw, 1.
or levied, by the king or his heirs, in this realm,
without the good will and as&ent of the arch"
bishops, bishops, earls, bnrnns, knights, bur-
geues, nod other the freemen of the coninion-
ally of this realm; and bv flotbonty of parlia-
ment holden in the SSth year of tLe reign
orki(]|£d(vard 3*, it is declared and enacted,
Tbut &om thenceforth no person shall be com-
pelled to make any Loans to tlie king ogaiDst
Ills will, because such Loaus were against rea-
son, and the franchise of the land; and by
other flaws of this realm it is provided, that
none should he charged by any charge or im-
position, called a Benevolence, nor by such like
charge; by which the statutes before-men-
tioned, and other the good laws and statute*
of this realm, your subjects have inhcrilcd this
freedom, thut they should not Ic compelled lo
contribute to anv tai, fallage, aid, or other lite
charge, not set Dy common consent In parlia-
If. " Yet retertheUss, of late, divers Com-
miisions, directed to sundry cotnniissioiiers in
several counties, with instructions, have issued ;
by means whereof your people have been in
dire'ra places assem'bled, and required to lend
certain sums of money unto, your majesty, Bud
many of them, upon their refusal so to do, hav*
had an oath administered unto them, nut wor-
rantahte by the laws or statutes of diis realm,
and hnve been constrained to become bound to
make appearance, anil give attendance before
your privy-council, nod in other places; and
others of them have been therefiire impri»oned,
confined, and sundry other ways molested and
disquieted. And divers other charjies have
have been laid and levied upon your people in
several counties, by lords lieutenants, deputy
lieutenants, commissioners tor musters, justice*
of peace, and others, by command and direc-
tion from your majesty, or your privy-council,
against the laws and free cuitoms of this realm,
III. " And whereas also by the !>tatute call-
ed!, 'The Great Charter ot the Liherties of
' England,' it is declared and enacted, That
no Freeman may be talicn or imprisoned or be
disseised of his freehold or liberties, or hii free
customs, or be outlawed or euled, or in any
manner destroyed, but by the lawfiil judgment
of hii peers, or by the law of the land.
IV. " And in the S8ih year of the reign of
kiag Edward S §, it was declared and enacted
by authority of parliament, "That no mno, of
what estate or condition he be, should be put
out of his land or tenements, nor taken, nor uu-
prisnned, nor disherited, nor put to death, iviih- '
out being brought to ansner by dne process of
V. " Nevertheless, against the tenor of the
said statutes II, and other the good laws and
statutes of your realm, to that end provided.
• SS Edw. 3, Rot. Pari.
+ 1 Edw. 3, 6. 11 R. a, 9. 1 B. 3, (.
t 9 Hen. 3, 29. & as Edw. 3, 3.
II ST Edw. 3, 18. 38 £dw. S,9.ii Edvr: 3^
ttS] ffTATBTBlAlS, 3 Cb*UX1 I. l62i.—P,'octediii§i in Parlimnat noting le [234
dnen of ;o*ir tutyccti IwTe of late beas iio-
briMced, vilhout any Ckuae iliewed ; and irbea
~ Lhcir delivemnce tliey were braiqht btfott
rf ihould order,' and tbeir Lecpen com-
JDanded to certify the ctuisn of their detainer ;
bo cause was certified, but that thej were de-
tained by your mtyesty i ipecisl counuuid, tig-
difird by the lords of your privy-council, aad
yet were returued back to aeveral pritoot, witli-
<nit being charged with any thing to ivluch tbey
might make answer according to the law.
VI. " And Hhereaiof lau.great companisi
of Soldiers and Muiuen have been diapeiMd
itilo direfs countiea of the realm, and the io'
babitants, against their wills, have beeo coni'
pdled to rec^re them into their Itouse*, and
there la sufier tbem to sojourn Hgaintt thelans
and cuitomi of thtg lealm, aim to the gient
grievance and vexalion of the people.
VII. " And wbereas, alio, by aatboritr of
parliament, iu the 25th year of the rdga of king
Edw. 8, it l9 declared and enacted, That no
laws and siatuto of this reabu : and by the laid
Great Chuter, aud other the Uwi and statuie*
of thil your realm, no man oegbt to be adjudg-
ed to death, but by the laws astabliahed in this
your realio, either by the customi of the same
realm, or bj acU of parliament: u^, whereat
' BO offender of what kind aoevet is exempted
from the proceeding!! to be used, and punish-
ment! to be inflicted by the laws and statute)
of this your realrp : nevertheless, of late, dicers
commission), under your m^esty's great seat,
have issued forth, by which, cenain perwos
have been assigned and appoioied conuius-
simiers with power and authority to proceed,
wiibiu the land, according to the justice of
martial Inw, against sucb soldieii aad mariners,
or other dissolula persona joiniog with tbem,
H should commit any murder, robbery, talon j,
mutiny, or other outrage or tnudeoieaoor what-
soever; aud by such summary couruandoid«ii
•s is HgTeenbiB to martial law, and is used in
vmiea in dme of war, to proceed to (he trial
and candenmation of such olender*, and them
e to be ezecnled and put to death, oc-
ing to the martial lai
VIII. " By pretext whereof some ofyi
jesty'i Bubjects have been, by tome of the said
commissioners, put to death ; when and where,
if by the laws and statutes of the land they bad
deserved death, by the tame laws and statutes
nlsQ thev might and by no other ought to have
been adjudged and executed.
IX. " And, «lio, nindry grievous offenders
by colour thertof, claiming an eienption, have
escaped the punishment due to them by the
laws and statutes of this your realm, by reason
that divers of your ofBi^n and miaitlen of
iostice have unjustly refused, or'tbrbom to pro-
ceed against snch offenders, according lu the
lame law* and atatntes, nuon pretence that the
tftid ofieaden wcra punistwble ooly bj nwti*!
Uw, and by autLority of such o
aforesaid ; which commission^ and all othen '
of liLe natura, are wlwlly and directly contrary
to the said laws and statutes of this yuur realm.
X. " They do therefore humbly pray your
nustescellentiaajesty,* 1. That no man here-
afttr be compeUed to make or yield any gift, loan,
benevolence, tax, or sucb lite charge, without
common cMueot by act of pariiament ; |. and
that none Ue called to make answer, or take
sucb oath, or to ^le attendance, or be ood-
fiiied, or otherwise molested or diwprieted oo»-
ceming the same, or for refusal thereof; 3. and
that no freeman in any such iaanaer as is be-
fore raenti'ined, be imprisoDed or deteined.
XI. " All which ibey most humbly pray of
yonr most excellent majesty, as their tight* and
liberties, accoT^ing to the laws and Atfntct of
this realm ; and that yonr majesty wootd atao
vouchssfi! to declare, that the awards, doifi)^
and proceedings, to the prejudice of yonr
people, in any of the premtMes, shBll bM b*
drawn herealler into con&equeoce or exanple :
and tbnt yourmuealy woaldbealso graoiooaly
pleased, for the forther comfort and safety «"
your people, to declare your royal will and
pleasure, that i» the thinn aforesaid, all your
oAcen and ministers shall terva yov, aoeiMil-
iog to the laws and sututM of toit realm, a«
tl«y tender thn honour of your mqesty, aod
the prosperity of this kingdom." [See Sutaut
at iMg^ 3, 4 Car. 1.]
The EiRff't Absweb.
Which Petition bemg read die 9d of juIM,
the king*s Antwer was thus delivered by ibe
lord keeper :
" The king willclh that right be dune acoird-
ing to the laws and customs of the realm; iDd
that the statutes be put in due execution, that
bis subjects may have no cause to complain of
any wrong or oppressions, contrary to their just
Rights and Liberties : to the preservation wherfr.
of, he holds himself in conscieuce as well
obliged, as of bis prerogative.*
On Tuesilay, June 3, the king's Answer nag
read in (he House of Commons, and seemed
not fnll enoDgh, in regard of so much eipenca
of time and labour, as had been employed in
contrimg tbe Petition.
June 3, A Message was bfooght from tlie
King by the Speaker,
" Tliat his majesty having, apon the Petitioii
exhibited by both Iwuies, given an Answer fiiU
of justice and grace, for which we and our pos-
terity hare jnst cattse to bless his majaty, ifim
now time to grow to a conclusion of the ses-
sion ; ajid tharefiirc hi* ^enty thi^s fit to let
you know, thu at be doth resolve to abide by
that Aiuwei, without further cliaitgi or altera-
tion, so lie nill royally and renlly perform uoto
you what he bath thereby promised: and fur-
ther, that he resolves to end thii session upas
Wedaesdaythellthoftliismuath. Aodibem-
foie wishetb, that the bouse will itriously at>
* SftEdw;.!, 6.
m]
STATE TRIALS, S Ciiablbs I. ] 028 the Liberty qfl/ie Sv^ect.
(end those buiinasea, Khicli idbj best bring tb«
KuiDD lu II bippj coacltuioQ, without eoccr-
[lining new matten ; and «o )iusbRi]d tbe time,
ttiu bij niajiatj Biaj witti the mare coiufort
biing lU tpccditj together ogftiii : mt njiich
tiiBe, if there be aiij further grievance* not
CDoUJned, or npressed in tbe Petition^ they
mty be more tnaturelv conaideieii (hiD tbe
blue Hill no ir permit."
Atotber Message wa« brought Irom hit Ma-
jestj by the Speaker, Tbunday 5tlt of June.
" Uu Diajeity wished them to remember the
Uesnje he iut teat (hem, by which lie set a
^y Ibr the end of tbit lesaion, end he com'
Muded tJie Speaker to let them kaow, that he
■ill ceitaialy hohl that day prefixed without •)-
ItntioD; and becauM Uuit cannot be, if the
bsDse entertain more biuiness of length, he re-
fute) them, that they fenter not into, or pro-
cted iriib any new business, which may ipend
pcater lime, nr which may lay any scandal or
Mperaion upon the ttale-goTernmeat or minia-
Urs thereof,"
Sir Jtofrcrt Pliiiipi, upon ibia occasion, ei-
pniMd liinuclf thus: I perceive, that towards
Gnd, and towards man, there is little hope,
sfier our liumble aod careful endeavours,
seeing out titis are many aad so great : I con-
lidn my own infirmitiei, and if ever my pas-
Kons were wrought upon, ibu now this met-
■•geitin me up cspeciRlIy; when I rempiaber
*ith what moderatioD we have proceeded, 1
cuDOt but ivouder lu see the miserable straight
Mare now in; what have we not done, to
bue merited? Former times bare given wounds
u of all hut misery
cmild; and what is the re
ud desalation ? What i
htKierred his majesty, and to have done that
■bith would liave made him greut and glori-
wal If this be a fault, then we are nil crimi-
mui. What ihall wc do, since our humble
porposes are thus prevented, which were not to
n>e laid any aspersinn on the government,
■ImX it tended to uo other end, but lo give his
iMtesly true information of liis and our dan-
t"' And to tliis we are enforced out of a ne-
tOiiiy of duty to iLe king, nur country, and to
pouerity ; hut we being »top^d, anil stopped
1 inch manner, ai we are enjoiiied, so we must
>uw leave to be a council, I hear this with
ibu grief, aa tlia saddest message ol' the great-
ni liHt in tbe world. But let us still be wise,
bcbamhle: let us make a fair declaratiou to
tbe kin;.
Sir JoAn Elliot. Our sins are so eiceeding
peat, tiiat uikleas we speedily relnm lo Gud,
Ijod will remove biinself further from us :
ye know witli what aOeciion and integrity
,■< bive procaedeit hitherto, to have gained hii
tajeii^'s heut, and Out of a twcesiity ef our
■bity, were brought to tliat course no were in i
t (ktubi, a miircpteientaijon to im majesty
hub drawn tlus mark of his displeasure i^d
o^ Itdtterva ia the Messnge, umongit other
»»i .particulars, it is conct^iv^(l, that iie were
you III.
■bout to lay some aspersions on tlie govern-
ment ; give me leave to protest, that so clear
were our intentions, that we desire only to vin-
dicate liiosr dishoniiurs to our king and coun-
try, &c. It is Mid ulao, as if we cost some as-
EeiVDns ou hii mnjesly's ministers ; 1 am cou~
dent DO minister, bon dear soever, con —
Here the Speaker started up from the seat
of the chnir, apprehending sir John Elliot in-
tended to fall upon the Dnke,Bnd some of the
ministers of state ; and said, There is a com-
mand laid upon me, that I must command you
hot to proceed, — Whereupon sir John Elliot
Sir Ihidley Diggi. I am as much grieved
as ever. Must we not proceed ? Let us sit in
silence, we are miserable, we know not what
to do.
Hereupon there was a ^tence in the house
for a while, which was broken by sir Nathaniel
Rich, in these words :
air Naitanul Rieh. We mutt now speak
or for ever hold am- peace ; for us to be silent
wb<^ king and kingdom are in this calamity,
is not 6t. The question is, Whether we shall
secure ourselves by silence, yea or no? 1 know
it is more for our own secunty, but it is not for
the sectirity of those for whom we serve ; let
us think oii them: some ii
and shall we now sit still anil do nothing,
and so be scattered P Let us go together to
the lords, and shew our dangers, that we maj
then go to the king logethn.
Others said, that the Speech lately spokan
by sir John EUiot had given offence (aa tbej
feared) to his m^esiy.
Whereuponthe House declared, 'That every
' member of tlie bniwr is free from any undlk-
' tifiil Speech, from tbe beginning uf the parlio-
* meni to tliat day ;' and ordered, ' I'hai the
' house be turned into a Committee to consider
' what is St to be done tor tbe safety of the
* kingdom ; and that uo man go out upon paia
' of going to the Tower.' But befbre ths
Speaker ufl tbe chair, he dedred leave to go
forth; and the bouse ordered that he mav go
forth, if he please. And the house was fierfr-
opon turned into a Grand Committee : Mr. .
Whitby in ihe chair.
Mr. Wande^ard. I am full of grief as others,
let us recollect our English hearts, and not sit
still, but do our duties: two ways are pro-
pounded, to go lo tfas lords, or to the king; I
think it is fit we go to the king, for (bis doth
concern our liberties, and let us not Tenr to
make a Remonstrance of our Rights; we are
bis couiisetlors. Tliere are seme men which
call evil good, and good evil, and bitter sweet ;
justice is now called popularity and (action.
Sir Edxarii Coke: We Jiave dealt with that
duty and moderation that never was the like,
rtbiu lie itatilibus, after such a violatiuu of lbs
Liberties of the Subject; let us lake this to
heart. In 50 Ed. 3, were tbry then in doubt
227] STATE TRIALS, SChaussI. IG2S,
ia pacltammt to name men thtt misled the
kiiigf Tliev Kccused John de Gnnnt, the king'*
son, anil lord Latimer, and lord Nevil, for mis-
fdviiringtlie king, Hnd tbej went to the Tower
>r it ; now when there is such h downW of the
state, slinll we hold our tonnes } How shall
we answer our dutim lo God Mnd men? 7 H. 4,
Fnrl. Rot. n. 31, 6c 33, 11 H. 4, a, IC, there
the Council we compluined of, and are remoT'
ed from the kin( ; they mewed up the king, and
dinuadcd him from [he comnou good ; and
wh' ' " ' "
:iy are wc now retired from thM nay we
in f Whj maj we not name those tliat are toe
cause ofall our evils i In 4 H. 3, & 37 £. 3,
& 13 R. 3, the parliament moderated the king'i
prerogative; and nothing grows to abuse, hut
thii house hath power to treat of it. What
Bball we do? Let us palliste no longer; if we
do, God will not prosper us. I think the duke
afBuckiRghainis the cRQse ofall our miseries;
and (ill the kio); be informed thereof, we tball
never eo out with honour, or sit with houour
here: t^at man is the grievance of grievances :
let us set down the causes of nil our disasters,
and nil will reflect upon him. As For goinj; to
the lords, that is not via regia ; our liberties are
now impeached, we are concerned; it is not
viit r^^i", the lords are not participant with our
tibcrtirs.
Mr. Sclden advised. That a Declarotion be
drawn uuder four heads : 1. To express the
house'ii dutifiil carriage towards bis majtsty. 3.
To tender their Liberties that are lioiated. S.
To present what the purpose of the house was
to have dealt in. 4. That that great peisnn,
vji. the Duke, fearing himself to be questioned,
,<tid interpose and cause (his distracdon. All
this time, (said he) we have cast a mantle on
what WHS done lost parliament; but now being
driven again to h>nk on tlint man, let us pro-
ceed, wiih (hat which was then well begun, and
let die charge be renewed that was Init parlia-
ment agmngt hiin, to which he made an answer,
but the particulars were sufficient, that we
Blight demand judgmiot on that answet only.
In conclusion, tliQ bonte agreed upon several
Heads for a Remonjtmoce. fiut the Spenker,
who after be had lenve to go forth, wentpri.
t thi* Messi^e!
J communds for the pre-
t tliey adjourn the house till [o-morrow
rnornin^ and that all ccoiniittees cease in the
JDCan tunc." — And the bouse was accordinglj'
adjourned.
At the same Ume the king sent for the Lord-
Keeper to attend iiim presently; the bouse of
lords was adjourned ud libitum. The Lord-
Keeper being returned, and the house resumed,
his kmlfihip si^niGed his majesty's desire, ihat
the house and all committees b« adjouraed till
to-morrow morning,
i'riday, 6th of June, Mr, Speaker brought
another Message from the King, and said : —
la my ternce to this liouse I have had many
undeserved favours front yoD, whidi I shall
en!r with all humbleness acknowledge, but
— PncKdmsi in ParliaiHaa rebuiKg to [39S
none can be greater thai) that cetthnony of
your ronlidence yesterday shewed nnto me,
whereby I hope I have dane nothing, or mada
any representation to his majesty, b.ut what i$
Ibr the honour and service of this house; and t
will have my tongue cleave to my moutb, b^
fnre I will speak to tbe disadvantage of any
tnemher thereof: I have now a Message to de-
Whereiis his majesty understanding, that
you did conceive his last Message to restrvn
you in your jnst privileges, these are to declare
his intentions, That he had no meaning of h»r-
ring yon from what hath been your nght, hut
oni^ to avoid all scandals on his council end
actions past, and that his ministen might not
be, nor himself, under ibeir names, tuied for
their counsel unto his innjeity, and that no such
particulars should be taken in band, as would
ask a lunger time of consideration than what
he bath already prefixed, and still resolves t*
hold ; that lo, for (his time, Christendom might
take notice of a sweet parting between him and
his people.: which if it fall out, his mnjeity will
Dot be long from another meetiog, wbcu such
grievances, if there be any, at their leisure and
convenience may be considered."
Mr. Speatcr pnieeerled ;
I will observe somewhat oot of this Message;
ye may observe a great inclination in his ma-
jesty to meet in (his hous*. 1 was bold yes-
terday to take notice of that liberty ye gan
me to go to his mnjesty ; I know there are
none here but did imagine whither I went,
and hut that I knew you were desirous and
content (hat I should I'eMve you, I would not
hm-e desired it: give me leave to say. This
Message bars you not of your right in mat-
ter, nay, not in mumer; but it rcacheth to
his eounseli past, end fur giving him couiisel
in those things whicti he commanded.
The House of Lords likewise received this Met-
sage hy tlie Lord-Keeper,
" My Lords, his majesty takes nntica, tu your
great advantage, of the proceedings of thir
h[>use upon the hearing ot his majesty's Mes-
sage yesterday; he accounts it a tiiir respect^
that yc would neitlier agree on any committee,
or send any Message to bis maJMiv, thoi^h it
were in your own hearts, but yield yonrseUci
to Ills majesty's Messiige, and de^ your owu
resolutioiis till you meet f^in at tbe lime ap-
pointed by his majesty. Yei his majesty takes
It in extreme good part to hear what was in
your lieart, and especially that you were so sen-
sible of the inconvenience (bat might eosna
upon thehreaeb of this parliament : which if it
had happened or shall hereafter happen, his
majesty asiures himself, that' he shall stand
clear ijefore God and men of the occasion. —
But his majesty saith. Ye bad just cause to b«
sensible of tbe danger of comiderbg how dio
state of Christendom now stands in respect of
■he multitude and streugih of oCir enemies, and
weskness on our port. All which hia majesty-
knows very exactly, and in tcspoct thereof
S9]
STATE TRIALS, 3 Charlu I. 1628.— the Liberty t^ike SiAject. [330
ipoQ him, but out of a at-
oRcd thii p«rliameqt; the particiikn his mm-
jcttj boUi it oeedlew to recite, e»p«ciatl]r lo
joui lonl&hipt, since chej are appareot lo all
wan neiiW will it be DeedlUl Co rtiteratu
tlKDi to hii DMJesij, whose cares are laoii at-
UBtiie apon ibem, and the beit rernedj ihat
OB bf Ibooghc on therein, i*, if bis Bubjects do
ikir paiti. Therefore bii nMJest^ ^vea ;ou
innj thaoki, and bid me tell viiu, ihat Dothing
luthbeeD niare acceptable to bim aU (he time
of tbit paHiameot, tnmn thia dutiful and dii-
atct cairiige of ifoar lordahipi, which be pro-
lauah haih been a cMeTinotiTe to bis mnjestj,
'"■"'"' ) thai were not fur
Sir Saierl Phii^ aBsumed the debate, upon
lie Jdcaage delivered b; che Speuler, and
aid i I rite 141 with a disposition, somewhat in
Doic bopc of comfort tliun jresterda; ; jet, iu
npid of tiie uncertain^ of conoseti, I iltall
Kcbaoge much. In tbo first place, I must
it bold mibout flatten ag, a thiug oot incident
10 Die, to tell you Ktr. Spealicr, jou have ant
mIj St all time* diichargad the duty of agnod
SpEak«r, but of a guod man ; for nblch I ren-
iajaa monj thanks. — Another Tcspcct touch'
0% lus majeslj's Aofwer to our Petiiion ; first,
if tlwt answer fall out to be shart, 1 Iree his
anjeuT, and I believe hit resolution was to give
lut wMch we all eiipccted : bat in that, as in
■dttn, we have suflered, bj reaioa of inter-
NKd peraoua between his majestj| and ui.
But this daj is bj intervenient accidents di-
nned iixnn that, but so, as in time we go to
Usawjestj; therefore let as remove those jea-
Iwaies in hit luajeetj of our proceeding, that
tiume men ovei^rown have been mrerepre-
med. We have proceeded with temper, io
onideiKa of hismajettv'i goodness to uB,aBd
nr fidelity lo him i and if anj havecoostrued,
ihu what we have done hath been out of fenr,
Ittbin toow we came hither freemea, and will
' ever teulve to endure the worst ; and they are
feor meo that make tuch iaterpreiations of
ptriiainent*. In this way aod method we pn>-
tttded, and if any thing. GUI out unhappily, it
a Dot kioE Charles that advised lumscir, hut
^ Charles misadviied by others, and misled
bf misordered counsel ; it becontesus tu cod-
uff what we were doing, and now to advise
^t is fit to be dune. We were tnldogcon-
HderalioD of the itate of the kingdom, and to
Enaent to bis majesty the danger be and we
ucii, if^ince any man batb been named iu
FaniaiUr, ^though I lore to apeak of mv bet-
ten Kith humility) let him thank himself and
b counsels, but tboee necestaiy jealousies give
■ occanon to name him; I assure mywlfwe
■Ul proceed with temper, and give his majestv
wkfsctioo, if ne proceed in that way. Hit
*^nty's message is now explanatory in point
of our libertiet, that he intends not to bar ut of
Hr tigba, and that be would miC have any aft~
|(nioi) out on the counsels past; let us pre-
mt to hit majesty tliortly and ^thfuUy, and
mu* ourinientiODs, that we intend not '
turrouoded with, and to present lo him the af-
fairs at home and abroad, and ti> desire bis ma-
jeiity, that no interposition or misinformation
"men in fault may prevail, hut to expect the
luc that shall be fuA of duty and loyUty.
The Commous sent a Mewage to the Lords,
that tbey would join in an bumble request lo
the king, that a clear and satisfactory Answer
be given by his majesty in full parliament Co the .
" 'ition of Hight; whereuuto the lords did
Jnne T, the King came to the Lords House,
and the house of commons nereaeot for. And
the Lord~Keeper presented the humble Pelittoa
of both heusee, and said,
" May it please your most excellent majesty,
the lords spiritual and temporal, and common* ■
in parliament assembled, taking inloconsident-
tion that the good intelligence between your
majesty and your people dolb much deiiend
upon your majesty's Answer uoto their Petitioa
of Right .formerly presented; nlth unanimous
[nt do now become most humble suitora
your moJMty, that you would be grnci-
ouily pleasid to give a clear and satisSictory
Answer thereunto in full parliaineni."
Wbtreimta the King replied.
The Aniwer I have already given you was
made with to good deliberation, and approved
by the judnnents of >o many wise men, that I
could not nave imagined but it should have
given you fiill salistactioo; but to avoid all (un-
biguous interpretations, and to shew you that
tbere is no doubleness in my meaning, I am
willing to pleas* you as well in words as in sub-
stance ; read your Petition, and you shall havtt
an Aoiwer that I am sure will pleate you."
The Petition was read, and this Answer wu
returaed :
Soil droit fait eome il at dairiperUPttitioH.
C.H.
"Thitlai
notnoretbai _ , ,
for the meaniu| of that WM to confirm all yotir
Liberties, knowmg, according to your own prft<
testationt, that you neitber mean nor can buit
myPrerocative. And lasture yon, my maxim
ia, that uie people's Liberties strengthen tlw
kiac's Prerogative, and the king's Prerogaove if
to defend the people's Liberties. You tee how
ready I have shewed myself to satisfy your <te-
mandi, so that I have done my part; where-
fore,if this pariiament have nota happy coll-
duuou, the sin it yours, I am free from it."
Whereupon the Commons returned to their
own house with unspeakable joy, and resolved
10 to proceed as tu ei press their thankfulnesa.
t7
The King's Message to the Lower Hoose
sir Humfrey May, 10th of June 16^.
His majesty is welt pleased tliat your Peti'
tion of lUght, and bis Answer, be not only re-
331] STATE TRIALS, 3 Cbahles I. i6W.—Prwxedmgi in Parlia»mt, Ifc. ['iSS
carded in both houwa ofparliuneut, but also in
■11 the courts of Wettnunuer; and rhat hii
pleasure is, it be put in print for his honour,
and the content aud the aatisfaction of his p«o-
Ele, and that you proceed cbeerfulljr to settle
usineises fiir the ^ood and reforniBiioii uf the
comuiniiweattli.
June 26. The Speaker being sent for to the
king at Whitehall, came not into the house till
about nine o'clock. And after praj'ers, the Rc-
monstrance concerning Tuiinage and Poundage
being iiigrossed, wa.! a reading in the house;
and while it was a reading, ihe king sent for the
Speaker and (lie ivhole house, and the kiog
made a Speech as followetfa :
" It may seem strange, that I canle so sud-
denly to end this session ; before I give mj
assent (o the bills. I will tell Jou the cause,
'though I must avow, that I owe the xccount of
mj actions tq God atone. It is known toever^
one, that a while ago the hoiis« of commons
gave me a lUinotistruacej how ncceptnhk,
every man may judge ; and for the merit
of it, I will not call that in quesllon, for I am
Bure no wi^e niiin Cin justify il. — Now, since I
am truly informed that a second Remonstrance
is preparing for me to take awnj the profit of
my Tuniiage attd Poundage, one of the chief
maintenances of tn; crown, by alledging I have
given awa;r '"J "jcht thereto b^ my Answer to
your Petition : — This is so prejudicial unto me,
that I am forced to end this session some few
hours before I meant, being not wiliine to re-
ceive any more Reragnstranceg, to which I
must give n hirsb Answer. -Anil since I see,
that even the house of commons begins already
to make false constructions of what I granted
in your Petition, lest it be worse interpreted in
tlie couutry', I will now make a Declaration
cooceming the true intent thereof: — The pro-
ttssion of both houses in the time of hammering
this Pecilion, was no way to trench upon mj
Prerogative, saying, they had neither intention
or power to liurt it. Therefore it must needs
be conceived, that I have granted
only confirmed the antient Liberties of my
Suhjecti. Yet to shew the clearness of my '
tentiuni, 4hat I neither repent nor neiiD
recede fraai any ibing I have promised you, I
do here declare myself. That those things which
have bceo done, whereby many have hnd si
cause to sulmect tbe Liberties of the Subji
to be trenched upon, which indeed was the
first and true ground of the Petition, ehall not
hereafter be dr^wn into «XMnple lor your
judice ; and from time to dme, in tba '
a king, ye shall not have the like cause to
plain. But as for Tunnage and Pound agt
■ thing I cannot want, and was never intended
by you to aik, nor meatit by me, I am
grant. — To conclude, 1 command you all that
are bere to take notice of what I luve ^oki
at this time, lo be the true intent and meaning
of what I gnmlwl you in your Petitii
especially you, my lords the Jndges, fai
nnlyt under me, oelonp tbe iatflrpretatiou' of
ir pre-
ord of
lows : for none of tbe hrfuses of pariiamCDt,
either joint or separalb, (what new doctrine
soever amy be raised) have any power either to
make or declare a lawwtthout my consent."
Then the Lord Keeper said. It is his ma-
jesty's pleasure that this se^ision now end, and
that the purlininent be prorogued till the SOttt
fOctobernext.
In the following sessions, vif. Wednesday,
anuary Slst, it was ordered that Mr. Selden
lid others should see if the Petitibn of Right
nd his maiestt's Answer tltereunto were in*
rolled in the Parliament Rolls, and the Courts
Westminster, as his majesty sent them wont
the last tetsion they should be ; and ulso in
what manner they were entered ; which was
done accordingly, and Mr. Selden maile report
to the house, that his majesty's Speech made
the last day of the wssion ili the upper house is
also enter«J by bis majeitv's command .^-Here-
upon Mr. Pym moved, tfiflt the debate hereof
should he deferred til) Tuesday next, by reason
of the fewness of the bouse.
Sir John Elliot. This whicb' is now men-
tioned, concerns the honour of the house, and
the liberty of the kbgdom ; it is true, it de-
serves to be deferred till there be a full house,
but it is good to prepare things. I find it is a
great point ; I desire a select Committee may
enter into consideration therenf, and also how
other Liberties of the kingdom be intaded. I
find in tbecountry the Petition uf Right printed
indeed, but with an Answer that never gave
any satigraction ; I desire a committee may
consider thereof, and present it to the bonsr,
and that the printer be sent for to give satis-
fiietion to the house, by what warrant it was
printed. Which was ordered.
m^.Seldtn. For this Petition of Right, it ia
known how lately it hath been violated since onr
last meeting ; the Liberties for life, person and
freehold, how they haie been in vailed ; and
have not some been committed, contrary to
that F Now we, knowing these invasions, must
takenoticeofit. For Liberties, forState, wo
know of an order made in the Bzcheqner, that
a sheriff was commanded not to execute a re-
plevin, and men's goods are taken and must not
be restored. Whereas no man ought Co lose
life, or limb, but by law ; hath not one lately
lost his ear* (meaning Savage) that was cen-
sured in the Star-Chamber by an arbitrary
sentenceand judgment.' Next, they will take
away our arms, and then our lives. Let all see
we are 'sensible of these customs creeping npon
US: let us make a just presentation bereoito
his majesty.
Norton the King's Printer was brought totbe
bar, and asked by what warrant the Additions
to the Petition were printed f He antwerw),
chat there was a warrant (as he thought) from
the king himself. Atid being asked whether
there were not some copies pnnted without nd-
diticiiu, he answered, there were seme, but ibej
were lupprewed by wsmvl.
23S] £TATE TRIAI^, 4 Chables I. \6Q9.-~C(ue of Walter Long, aq.
[3M
Sir John Elliot d«ir^ lome clenrer satis-
ficiioD might be madr, Bod that he mi^t an'
jirer flirectlj by wtmt warrant, — ifrliereupon
be was called in agBin : who snid, he did not
Nmember the particular, but sure tie wat there
Hr. SeUtn reported from the Cammittee
cntcemiDEthepriiiiingufthe Petition of Sight,
that there were printed 1500 withoat an; Ad-
ditinD at all, whicli were published in the time
of the last parliament ; but dnce the parlia-
ment, other copies haTc been printed, and
these lupprot and made waste paper; which
the Printer did, as he said, bv cnmniand tram
Mr. Attorney, which he received from bii ma-
jesty. And the Printer fiirther said, That the
Attorney was with the Lord Pri»j-Seal at
Whiteliall, and there delivered unto the Printer
sundry papers, with diven bands to them, and
on the backside was endorsed thus, ' We will
' and command you, that these Copies ba
' primed.'
Which pat an end to this Grand Afikir.
128. Case of Walter Long, esq. Sheriff of Wilts, and one of the
Burgesses for Bath, for abseoting. himself from his Bailiwick
to attend his duty in Parliament: 4Chart.es I. a.d. 1639.
[I Rushworth, 684. 2 Cobb. Pari. Hist. 518.J
In Hilary Term, 1629, the Case of Waller
LoD^ esq. one of the imprisoned Genileaten,
came to hearing in the Star-Chambcr, which
IS u follow eth
Aa Information was exhibited into the Star-
Cbamber, by sir Robert Heath, knight, his ma-
jesty's Attorney- General, plaintiff, against the
said Walter Long, defendant, for a great and
prtsumptuous Contempt against his majesty,
ibr breach of duly and trust of his office, and
Cot manifest and wilful breach of his oath
taken as Hi^ Sheriff of the county of Wilts,
and not reiiding and d»eUing in his awn per-
ioD in the said county, accurdinE to the said
oath ; bat bong chosen one of the citizens for
the city of Bath, in the county of Someiset, to
serve lor the ssid cily in the [nst pnrliameot, by
colour thereof he remained at London or West-
minster, during the lime of that parliament by
the space of three months and above, in neg-
lect of hb duty, and in manifest contempt of
the laws of this kingdom : which cause was
now, by his majesty's said Attorney-Gcoeral,
bronght to bearing upon the defendani's own
oonfeuioa.
And upon opening the Answer, and reading
the Eaaminatioii of the said defendant, it ap-
peared to this Court, ' That the latd defend-
' ant Long warn by his now minesty made High
' Sheriff of the county of Wilts in or about
' November, in the third year of his majesty'
' reign, and received his patent of sheriffwick
' fiw the said county about ten days' afler ; and
* that be look an ouh before one of the masters
' of ibe Chancery, for the due execution of the
' said office of Sheriff of the said cou
. which oath, as appeared by the same there
r«sd in court, he did swear. That he would
his own person remain within his Bailiffwick
during all the time of bis Sheriffwick, unles
had the king's license to tbe con^ary ;
that at an election of citizGDB for iJie said
ofBath, tbe said defendant Long was chosen
•neof thecitizeni to serve for the said cily of
Bath in the parliament then summoned, to be
lioklen ai>d Gommenc* upon tbe ITth day of
March in the said 3d year of liis majettv'*
reign ; and being so chosen, and retarned by
the Sheriff of the coifnty of Somerset, notwitb-
slanding bis said oalh taken tu remain in his
proper person, within his bailiffwick, unless he
were licensed by bis majesty, he the said de-
fendant did make his personal appearance in
the commons house of parliament, at the city
of Westminster, in the county of Middlesex,
and did, during the most part of the said par-
liameni, continue in and about the city of Lon- '
don and Westminster, and did attend in the
larliament aa a. citizen for the said city of
)atb : during all which time be likewise was
Ids miijesly to tlie contrnry. Upon considers-
whereof, as also of the particular causes
reasons of the defendant's demurrer and
plea formerly exhibited unto tbe said Informa-
I, the benefit whereof was by order of the
rt reserved unto the defendant to be debat-
ed and considered of at the hearing of this
i, and of divers other matters now urged
for ihe defendant, both to have justifir^d his the
said defendant's attendance in parliament, and
his not residence in person in the county
whereof he was then Sheriff; and amongst
other things, that it properly belonged to the
house of parliament to judge of Che justness or
unjustnets of the said election ; and upon
grave and mature consideration thereof, bad
and taken by tiie court, their lordships did not
only conceive the said demurrer and plea, and
other the arguments and reasons U9ed*by the
defendant and bis counsel to be of no weight or
sireiigth, but also to be in opposition and dero-
galion of the juiisdiclion of the court ; llie rea-
sons moved and urged fur the defendant's ex-
cuse ur justification being clearly answered,
and the charges of the Information made goud
by Mr. Attorney -General, nnd others of his
majesty's counserieamtd. And therefore the
nhole (uurt were clear of opinion, and did so
declare, ' That the said defendant, who at that
' time, ta High Shenff, had tbe' custody and
S35] STATE TRIALS, 5 Chablu I. 1 029-~Proaediiigt egamit Wm. Stnud. aq. [236
' charge of tlic countyof Wilts commiited unto
■ him bj his mojeBt]', aod hnd taken his oath
* Bccording to the law to abide m his proper
' pertou within his bailiHWick during nil the
* time of hia sheriSVick as aforesaid, and whose
' [nut and employmentdidre^fuir* his personal
* attendance in the said couat;, had not onlj
' committed a great offence in violating the
* said oatb so by him taken, but also « ^mt
< misdemeanor in breach of tlie trust committed
' unto hitn bj his majesty, and in contempt of
' hia mnjeHy'B pleasure signi&cd unio him by
' and under his higbaess'a great senl, when he
' granted unto biiB tlie said office of sheriSWick
* aforesatd.'
For which said serend, great oflences in
breach of his said oath, neglect of the trust
and duty of hit office, and the great and high
contempt of hi* niiueiiy, their lordships did
bold the same defendant wortby the sentence
of the court; the rather, to the end that by
this example the sheriffs of all other counties
may be deterred from committing the like <jf-
fences hereafter, end may take notice, that
their personal residence and attendance is re-
quired within their bailifiwicks during the tiOM
of their sheriffwick. The court tberefore
thought fit, ordered, adjudged, and decreed.
That the said Defendant should stand and be
committed to the Prison of ibe Tower, there
to remain during liis majesty's pleasure, ^d
alsotopa;Afineof9,000 marks to hismajeaty's
use ; and Furtiiar, make his humble submiuion
and acknowledgment of his oSence both in the
court of Star-Chambcr, and to his majesty, be-
fore his tbcnce enlargement.
129. Procieedings agjunst William Stroud, esq. Walteb Long,
esq John Selden, esq. and others, od an Habeas Corpus,
in Banco Regis: 5 Charles I. a. d. i629.*
On Febniary gSrd, the house of c
being upon the debate of the business of the
Cusiomen, who hsd seised Goods, belonging to
r. Rolls, a member of the hnuse, dissolved
themselves into a em:
resolved, " That Mr. Rolls, a loetiiber of the
house, ought to have privilege of person and
goods; but the command of the king is so great,
that tliey leave it to the house."
AFter which, the king's Message, in justifica-
tion of the Faitueis end Officers of the Customs,
was^takeiL into consideration; which occasioned
narm Rebates, and the Sptsker (Finch) being
moved to put the question then proposed, re-
fused to do i^ and said, ' That be was otherwise
' commanded h* the king.'
Then said Mr. SeUUn, Dare not you, Mr.
Speaker, put the question when we command
you ? If you will not put it, we must sit still ;
tlius we shall never be able lo do any thing.
They that come after you, may s«_v,Tl!ey have
the king's command not to Au it. We sit here
by the command ot the king under the Great
Seal, and ^uu are, by his majesty, sitting in this
Toyai chair, before both houses, appointed for
our Speaker : and now you refuse to perrnrm
your office.
Hereupon the bouse, in some heat, adjourned
till Wednesday the SSth, when butfa houses, by
his majesty's command, were adjourned until
Monduy the Snd of March.
March 9. The commons met, and urged the
Speuker li put [Pie question; who said, ' 1 have
' a command from the king to adjourn till March
' the *10sh; and put no question.' And endea-
vouring to go uut of the Chair, was oolwiib-
staiidiog held by some members (the bouse fore-
•eeing a, dissolution) till a Protestation inas
published in the house; 1. "Against Popery
and Arminianism. 9. Against Tonnage aao
Poundage not granted by parliament. 3. If
any merchantyteld or pay Tiuuiage and Pound-
age not granted hy parliament, be should he
reputed a betrayer oflbe liberties of England."
Hereupon the king sent for the Serjeant of
the house ; but he was detained, the door be-
ine locked ■ Then be sent the Gentleman Usher
(Of the Lords house, with a Messue; and be
was refused admittance, till the saidVotei were
read. And then in much confusion the house
wag B^oumed to the 10th of March. Nerer-
tbeless bis mwesiy, by proclamation, dated the
3nd of March, declares the parliament to be
dissolved. [Though the proclaniBtian was not
published till the lOtb) and the day following,
(the Srdjwarrnnis were directed firom the coun*
cil to Denzjl HoUis, esq. ; sir Miles Uofaart,
sir John Elbot, sir Peter Hayman, John Seldeo,
William Coriton, Walter Long, William Stroud,
Benjamin Valentine, csqrs. ; commanding their
personal appearance on the morrow. At whicb
lime, Mr. Uollis, sir John Elliot, Mr. Coriton,
,Mr. Valentine, appearing, and refusing lo an-
swer out of parliament what was snid and dooe
in parliament, were committed close prisoners
to the Tower ; and Warranu were given (the
parliament being still in being] for the sealing
up of the studies of Mr. Hollis, Mr. Selden,
and sir John Elliot.' But Mr. Long and Mr.
Stroud not then, nor tor some timo after, ap-
pearing, a Proclamation issued futtfa for the ap.
prehendiog of than,
pnrposi.-.
the bona
committed to prison by him in the Star Cham-
ber, caused certain Questions to be proposed
to the Judges upoD the asib of April. Wbcre-
opon all the Judges met at Sei^enut^-Iun by
cowmmid from hi* m^csty, rihen Mr. Attot>
iS!] STATETfOAlS. SCbaklbsI 1029.— md oihat. m m Babeat Cmpm. [23S
kU agreed. That regularly he cannat be com'
pelled out of parliament to aniiter things dona
ID parliament in a parlismentar]' conne ; but
it is Dtbentise where thin|i are done eiorbi-
imntljr, for tbose are not the acB of a court.
4. Whelber if one parliament man alone shall
resolvp, or two or three ahall- ixvtnly conspir*
to mise false slanden and rumours Mcaiast the
lords of the council and judges, not with intent
to question them ia a lend course, or in n par-
liamentarj iray, but to blast them, and to bring
them to hatred of the people, and the govern-
ment in contempt, be jjunishable in li.e Star
Chamber after the porlinment is ended ^
Sul. The Judges resolve. That the same was
punishable out ofparliament, as an offence ex-
orbitant committed in pariiiuaeiit, beyond the
office, and besides the duly ofa parliament man.
There was 'another question put by Mr. At-
torney, vix.
Whether if a man in parlinment, by nay of
digmsion, and not upon any occasion arising
concerTiing the lame in parlinment, shall say.
The Lord!! of tl>e Council and the Judges had
■);reed to trample upon the liberty of ihe Sab-
jtct, and the Privil^ea of Parliament, he were
punjiihnble nr not !
The Judges desired to be spared to make any
Ausver thereunto, because it concerned them-
selves in particular,*
My proposed certain Questions concerning the
OSeaeet of some of the pnrliament men cam-
Bitted to the Tower, and other prisons : Al
■hid) time, one question was proposed and re-
lied, vis. • That the statute of 4 H. a, inti-
' led, ' An Act concerning Kichaid Strode,' was
'a ^utictriar act of parliament, and extended
'only to Richard Strode, and to those penons
■tbii bai joined with lum to prefer a Bill to
'd)c house of commons concerning Tinnen :
' And tlthoogb the act be piiTmte, and extend-
' eth to them alone, yet it was no more than all
'other parliament meo, by privilege of the
'bouse, ought to hare, tii. Freedom of speech
'concerning those matters debated in parlia-
'ment by a parliamentary coarse.'
The rest of the Questions Mr. Attorney was
vishedtiisetdown in writing a^inilanotlicrdny.
Upon Monday fallowing, ^1 tha Judg^ met
spin, and then Mr. Attorney proposed these
Quslions 1
1. Whether if any Subject hath recei»ed pro-
bable information of any Treason or treacherous
ittcmpt or intentioa agaiuet the king or state,
that Object ought not to make known to the
ling, or his majesty's commissioners, when
tbeteunto be shall be required, nhat infonaa-
Veo he hath received, and the grounds thereof;
N the end the king tieing truly informed, may
ptereot the danger ? And if the said subject in
■Bch case shall refuse to be examined, or (o an-
saerilie questions which shall be demanded of
IwB lor mriber i^iquiry and discovery of the
tniili,nfaetheritbe not n highcoutempt in him,
pBuishable in the Star Chamber, as au offence
■piftst the general justice and government of
lie kingdom ?
Sai, Tlie resolution and answer of all the
Jaslices, That it is an offence punishable at
albnsaid, so tlwt this do not ccncem himself,
batanotber, nor draw him to danger of treasoB
or contempt by his answer.
1 Wbeiber it be a good answer or excuse,
bang thn^ interrogated, and refusing to atuwer,
to say, That he was a parliament man when he
teceived the information, and that be spake
Aereofin the parliament bouse : and thereibre
the parliament bring now ended, he refused to
tamer to any such questions but in the parlla-
neat house, and not in any other place }
Sai, I'o (hii the Judges, by advice privately
to Ur. Atlottiey, gate this Answer, "niat thu
eicase being in nature of a plea, and an error
in ju(%meni, was not punishable, until he were
Mn-ru)ed in an orderly manner to make ano-
ther answer; and whether the party were
l>'in^ in ort tenm, or bf iurntmation, for this
)Aea be was not to be punished.
3. Whether a pnrhnment roan, committing
•a oSeace against tlie king or council not in a
pwliaincnt way, might, nfter the parliament
Bided, be pnnisHed or not .'
Sol, All the Judges, una W(e, answered, he
■>iiht,ifhe be not punished for it in parliament;
fcrthc pBrliamentshallnotgive privilege to any
'contnt murem parliamentarium,' to eni^eed tbe
bwnds and bmits of his place aud duty.
And
" Nalson in his Collections, »ol. 2, p. 374,
says. There were several Questions prnposed
to the three Cbief-Jud^rs about mattera in Par-
hanieut, to which they fjnvc these answers ;
which bein): something different from what is
nhore, are here inserted: Quirre 1, Whether a
Parliament-man, offending the king criminnlly
or contemptuously in the pnrliiiment-houwi
(and not then punished), may not be puni^ihed
out oF parliament f Atimer, We conceive, that
if a parliament-man, exceeding the priviltge or
parlinment, do criminally or conlemptuously
offend the kin^ in the parliament- ho use (and
not there punUfaed) may he puuished out of
parliament. — 2. Whether the Ling, as he bath
the power of calling and diMoIring a Parlia-
ment, have not also an absolute power to cause
it to be af^Durned at his pleasure f Am. We
conceive, that the king hnth the power of com-
manding of adjournments nf parliaments, as
well as of catling, proroguing and dissolving of
parliaments : But for the manner thereof, or
the more particular answer to this, and the upxt
subsequent question, we refer ouneUes to the -
Erecctients of both houses. — 3. Whether, if the
iiig do CDTnmind,an adjouminent to he made,
he hath not also power to command all further
proceedin|;s in paiiiament to cease atthat time?
4. Whether it be not a h^h contempt in a
member of tha bouse, contrary to tbe king's
express Commandment, conteinptnously to op-
pose the at^oumment t Am: The king's ex-
press commindmeD I being signified fc -*
joumment, if any afUr that shall oohtemptu--
oud^ oppose it, nirther, or ot' ' <
privtlege of th« house wiU t
c than the
o be a great contempt. — 5. Wltetlier,
it' a few pari lani CI it-men du conspire together,
to iiir up ill affections in ilie people ogaiuit the
king, and tbe government, aud to leave tlie par-
liiimcnt with nuch a loose, and by words or
wiitinirs put it in execution, and thi* not pu-
nished ill parlinmirnt, it be an ofience puninlia-
bJL- out ol' parliament f Ans. We conceive iliis
utTence to ba punislinblp out or parliament. —
C. Wliether, if some parliament- men shall con-
spire ini^cther to publiah paper* cuntauii'iig tnlse
iind sciuiiiulous nuuoun aj^aiiist tlic lunli of
li'C I'rivy-Council, or aof one or more uf them,
rut to the end to qucsiion tlicin in a legal or
)i:irliatnentary way, but to bring ihem into ha-
Iri'd ol' llie penplu, and the government into
I ijiitcnipi, and to uuke discord betw<
offeii
iiisliable out of parliaineiit? Am. Wi
■ his vUo u>be au offence punishable out of par-
liimeiil.— r. If (WO or three or more of the par-
iimiicnt shall conspire to defame the king'ii go-
vi'riunent, nnj to deter his subjects from obey-
iti|; or aiaistinK the Ling; uf wb at nature ibis
oill'iica iaf Am. The iialure aud quality of this
itlTmiie ndl be greater or lesser, as the ciicum-
sliinci:s stiali full out. Upon the truth of the
lact, — 8. Can any priviirf[e of tlie bouse war-
laut a tumultuous proceeding t Ant. We huio-
bly conceive, that an earnest, ihuugh a disor-
ilerly and c<infused proceednig in such a multi-
tude, may bo called tumultuous, and yet tlie
privilege uf ilie bouse may vrarraut it. — We in
all hiimbicoess ore willing to satisfy your roa-
Jekty's comm:ind, but until the particular* of
ibe fuct do appear, we can give no direct j^n-
I betore. And pariJculatly u tu tlie
■S than befoi
■ That Mr. Wilflam Stroud was committed
' under my custody by virtue of a certain Wai^
' rant under the nands of twelve the lord* of
' the privy-council of the king. The tcnour of
' wliicli Warrant followeth in these word* i
take knowledf^e, that it ii his
339] STATE TRIAt& S Ch. I. \029.—PrMeedui^ agemui Wm. Stroad, e*q. [240
The next day Mr. Attorney put the Judges
another case.
It is demanded of a parliament-man, being
called oreUimi, before the court of Star-Chani'
ber, being charged, that he did nut submit hioi-
aelf to examination for sucb thiogs as did con-
cern the king and tlie government of the state,
and were affirmed to be done by a third person,
and not by himself; if he confesses his hand to
that refu«iJ, and make his excuse, and plead
because be had privilege of psrliametit;
Whether iJie Courf will not over-rule this
Plea as erroueous, and lliat he ought to make
n further answer f
Aiu. It it the justest wny for the king
and the party not to proceed ore Itnui, because
it being a point in law, it is fit to hear counsel
before it be over-ruled ; and upon an ore lenui,
by the roles of Star-Cham ber, counsel ooght noi
to be admitted ; and that it would not be for
tbe honour of the kii^, not the safety of the
subject, to proceed in th:U manner. [But tbe
kifig droppnl the Proceedings agninft them in
the Star-Chamber.]
Pascli. 5 Car, upon an Ilabens Corptn of this
court to bring the body of William Stroud,
esq. villi the cause of his imprisonment, to tbe
marshal of ttie King's-beucb ; it was returned
' liam Stroud, esq. ; and keep bini close prisoner
< till you shall receive other order, either from
' hi* majesty, or this board : fur m daiog, this
' shall be your Warrant. Dated tliis ed of
' April, 1629.' And the direction of the Wa*-
rant was, 'To the marshdl of the King'»-
' bench, or bis deputy.'
He is also detained in prison by virtue of a
Warrant under his majesty's bantf; the tenouc
of which Warrant followetb in these word* :
C. K. ; ' Whereas you have in your custody
' the body of William Stroud, esq. by Warrant
■ oF our lords of our privy-councd, by our spf-
' cini command, you are to take notice, that
' this commitment was fur no tnble contempts bj
■ him committed against our self and our go-
' vemment, and for stirring up sedition against
' us; for which you are to detain him in your
' custody, and to keep bim close prisaner,
' uatil out pleasure be further known concera-
' ing his deliverance, Given at Greenwich,
second Quzre, about tbe king's potter of ad-
jotlrniog as well a* culling and dissolving of
I'arliatneuts, these following parlinmentaryjpre-
cedents were given in. 4 Aprilis, 1 Jnc. Sess.
1. Mr. Speaker pronouncelh his majesty's plea-
sure of ai^juuruing the boute till tbe 11th of
Aoril (and it was so done.)— 18 Dec. 1606.
The birds by their messengers signified tbe
king^s. plensure, that the session should be ad-
journed till the lOtli of Feb. following. — Upon
this iMeasBge Mr. Speaker adjourned thehouae
according to his mqes^'s s:iid pleasure. — 31
Martii 1607. Tbe Speaker dclii ered the king's
pleasure, that the house sliould be ndjouuied
till Monday tbe SOih of April follimins: — 20
Mail 1607. Mr. Spenker signified ilie kine's
pleasure about nine o'clock tu ailjiiuru tlie
house till the QFth of tbe same month. — And
tbe S7th of Mny, lie being challenged fur ad-
journing without the privity of the bouse, he
excuselh it, and saith, as tbe hojise had power
to adjourn themselves, so the king bad a su-
pfriiir power, and by his commmdlie did it. —
SO Marlii 1610. ilis majesty's pleasure to ad-
journ from Tuesday till Monday !>evennighr. —
11 July. The kin^ by commission adjourneth
(he lords bouse. Messengers sent tu the ooto-
inons. They send by messeo^en of their own
to the lords, that they use to adjourn themselves.
The commission is sent dowo, Mr. Speaker ad-
JQuraeth the house till tlie 1st of August. — SS
rebr. 4 Car. Mr. Speaker sii^nifieth his ma-
jesly't pleasure, that the house be presently ad-
jouTTied till Monday next, and in tbe mean
time all committees and other proceedings to
cease. And thereupon Mr, Speaker in tbeDama
of tbe bouse adjoumed the same according:!!.
Ul) STATE nUAI^ 5 CuAKLEt I- 1629.— «id aden, m m Ifa&eat CbrjMif. [S4S
'dwRbof Uaj, 16«9,ia the 5th jcm' of oar
iDedircctioD being, 'To tbcioanhal of our
'bcsch br tbe ntne being, et ha suntcaiiSK
'captiooi* ct delCDtioni* pr«dicti Gulielmi
•Stroml.',
Apd spoo ■DDther IM)mi Corpus to tbe
Ibnlml of ibe HouthoU, U im,vt the bod; of
Wtlur Long, esq. in conit, it wu reRnned ao-
mrdii* u the return of Mr. Stroud was.
(fcoonMJ fir Mr. Long; ergued againat the
iauffideiicj of tbe Relum.
Mr. Jtk. That the Return wm inuifiiciene.
Vie Rctoni coniisu apoD two Wairants, bearing
Knnl dates, which are the cause* of tbe taking
nddetainingoflhi prisoner. For tbe firat war-
oat, vbich is of thelordiof ihecouDcJ, that is
i«ifidtat : because do cauie ii shewn of bit
ctaiaiaDent, which is eipreslj against the re-
niitian of the ptirliameat, and their Peiition of
lifht, ia tbe time of ibis kio]:, which now is,
Mflbich be hat) hkeniae pven hisaaient; so
ba taking bj virtue of the nid warrant is
ans^ul. And for (be second warrant, it is
iatiSK^ieiit also, and that Dotwithitanding il be
ikkii^'sown; for UiekinghinilGir cannot im-
ffiioD BD7 nuui, as our booki are, to wit, 16 H.
li,F.Ii!oDitrancedeiHits. 1 H.T,4. Uussey re-
futs it to be the opinion of Markhsai, in the
tiKK of Edw. 4, and Forteacue 'in his book,
'Delaudibiu L^in Anglic,' c. IB. And the
KSKMi pt^ih ■>> because no action of false im-
prinument Ties ftgnintt tbe king, if th« impri-
anatent be wrowiid; and tlie kinj; cannot be a
■tang doer. Tbe statute of Magna Charts
il, Tbac DO fiweman be itnprisoned but bj the
kw ot the Und. And it appears bj these
baoh, that it is against the law of the land that
the king sbonid imprison an]i one.
i. Admit that this be oolv a sign i flea tian
M notlficBlioD given bjr the ting himself, of
>1k commitmeDtj of ibe prisoner; jet it seems
ilatthats,i|>itificHCioD isof no force, 1. Because
Ike words are genenl and uncertain — ' fur no-
'tiUe con temp ts.'—Th ere are in (be law ms»7
Coctcmpls of sevend natares; tliere are cou-
Unpls spinst the Common Law, against the
Swite Law ; contonpts in words, gestures, or
snions. And it appears aot to the court of
■bit oature these contempts were. — ' Notable'
— Eretj conleinpt nbich ia made to the king is
MtaUe. — ' Against our EOTemment' — Con-
itmpt which is ciaimitted in the Court nf
Keeord or Cbnacerj, a a contempt against the
(srenunenC of the king, to wit, becanse tbry
imobtr the king when lie commands thera bif
bsvms, Coke 8, 60, a. Beeeher's Case. The
lot kords of tbe Etturn are, — ' For stirring up
'■fstdiiian against us' — which words likenise
•^indefinite sndeenemt. I. find not the word
'Sedition' in our boots, buujlaken ndjectiTely,
St leditions books, seditions news, &c. lo the
ClatMeof [he 1st and 9d I'bil. and Mary, cap.
l.ltx words are, ' If an; person shall be coii-
' 'icted, Stc. for spmkiag, Ste. *n<f false, -ludi.
*i>t- lit.
' tious, or slaiMleTOos news, sajiing of tales of
' the qneen, Sec, be shall lose his cars, or pay
' 1001.' There tbe penalty imUMed upon such
sedition is but a fine. Coke 4. Lord Cromwel't
Case, p. 13, where sedition is defined to btt
Meonua ilio, when a man takes a course of bis
own, and there it is said, that the words
— * maintain sedition against tbe queen's
' proceedings' — shall be eiponnded nccortling
(o the. coherence of all the woids, and tbe io-
leuC of the parties. So that it is plain, that
there is a sedition that is only fiueabie, and
which is no cause of imprtsenment with*
out bftil; And what the sedition is that is here
intended, cannot be galheied ont of the words,
tbej are so geuersi. — ' Against us* — those nords
ore redunduit, for every sedition is against the
king.
Upon tbe generaiily and incertainty of all
the words in tbe Return, be put these Cases ;
IS E. 3. A man was indicted, < qnia. fiiratos
' est equuin,' and doth oat tty^ebmici, and
therefore ill. 99 Ass. 45. A man was indicted
that be was ' conunnnis latro,' and tbe iitdict-
ment Iwld fidous, because too general. So
here the oSences are returned generally. But
there ought to be something individual, Cok«
S, ST. Specot's case, '.<iuiB sclusnutticus inTe>
' terotus,' is no good caose for the bishop to re>
fuse a clerk, for it is too [jeneral, and there ara
schisms of dirers kiads^ SB E. 3, 3. Because tbe
clerk is criniiiHinii, it is no good causa tor the
bishop to refuse him. 8 and 9 Ein. Dy. 954.
The Ijisbop ofN. refo'rth one, becsose he wa*
a haunter of taverns, &c. for wbich, and diveis
other crimes, he wns unfit j htid that tbe last
wards ore too general and incertain. 40 £. 3, 6.
In the tender of a msrrioge, and refusal of the
heir, beonght to aUedge a certain cause of re-
fusal, whereupon issue may be taken. Cuke 8,
68. Trollop's case, to say, That the plaintiff i*
eicommunicatcd for dirers contumacies, shall
not disable hin, without shewing some cauie in
special of the eicommuuication, upon which the
court may judge whether it were just or no : so
here. And he concloded with a Case tliat was
resolved, HUI. 33 EJii. Peak and Paul the de-
fenilants said of ttie plaintiff, Tliou art a muti-
nous and seditions man, and maintainest sedi-
tion against tbe queen ; and tbe wordsadjudged
not actionable.
Mr. Mown (aficrwards recorder of London)
moved also, that tbe Return was insuflicient.
For tbe £ist Warrant That h« was cnmmiited
by command of tbe king, sienified by the privy-
council, I will aot argue that, because it^vtas
claimed as an ancient right pertaining to tbe
subject in Che Petition of Right, whereto the
king himself hatfi given his conwnC. For the
second Warrant, tlie lieium is,- ' for stirr-
' ing up sedition a^insl .us niid our i^overn-
' mcnt.' Sidition is oot any determined of-
fence witliin our law ; our law gives definitions
or description* of other offences, to wit, of
treason, murder, frlonj, &c. but there is no
crime in uur law called Sedition, it is defined
by a civilian CO be ' Seditio,' or ' Scceisiu, cue*
a4&] ?£ATE 'S&IALS, 5 Cb^mmI \&ia.^grocetdiHgi againtt Wm. Stntud, aq; {ii^
cbureb ; tbcj are to ba ponuhed Wl. by (be
moDth. Out of all which natures it ms; ba
collected, ihatthe word '«ditJoii' iitd«ii*a-
rtouslii, acnoiding lo ibe subject in faaiKi. And'
Coke 4, 13. Lord Cronnrer* case, * seditiDui''
referred to doctrino There are cdanca
nMre high id their nature than KditbD, which
were not treasoa, unleat ao declarcit bj act of
parliemcac. Ever^ rebeUions act ii sedition,
if Gucb acts be oot witbio the statute of 35
3, ihej sre. nottreston. 17 R. 3, c. 8, in-
■jirreciiDii of viUeins and others is made trea-
EOD ; which proves, thet before this aCl it was-
not treaton. Aud this act of 17 R. S, n l«-
pealed bj the scanie of 1 H. i. Bj Che sta-
tute of 3 and 4 £. 6, c. 5, to asstmble peopla
■.n alt«i the laws, is made tresMn, if the; con-
tinue together an hour afterpioclaDiatioa mad*.
This aueiablj of people itas tedition at tbo
ommon law; aud the very Bsaeoibl]!, if tha^
.tier diisolvc upon praclamatioa made, is oob
reason bj the haid statute. B; the (tatiit«
if 14 Elii. c. 1. it is nude fdonv, maliciously-
and rebelliousl; to hold from the queen any
castles, C(c. hut bccaiMC this rslatet not tv
the statute of 3i E. 3, it is not treason. 9. It
■eetns cleaily, thatihiscase. is within the Peti-
tion of Hijiht, in which Magna. Charta, and the
itatulei of as and 38 E. 3, are recited. Tb«
grievance there was, that difers hava been iin-
ptisoued without nnj" cause sbewad, to whtcb
thej might make ansWar according to the law.
And' upon this return, nothing appears t *' ~
fpars reipnUioQ cntitra portam iusunit;' so
tbEt!^>i[toa iaitfttkingbutdiviaion. Ekacton
and Olanejle hare the word Seditio geneialiy.
Before the staiutaof 45 E. 3, cap. 3, it <ta*
not clear enough what thing sbb Treason, what
not ; h; wluch statute it is dadand what shall
be called Treason, and that the Jodges shall
not declare any itiing to ha Treason, that is
not. cODlained witlun the Eakl sfatnte, but it
(ball be dsclareU oal; bj pariiameat. Aikd
that statute spesks iiot of EeJtlion, nor lb* sta-
tute of 1 il. 4, c. 10, which makes some tbiuKi
treason, which are not contained witb the said
Malute of 35 E. 3. The statute of 1 E. 6, c.
19, takei awaf all intervenient statutes, which
declared new treasons; and the said act de-
clares other thin^ to be tccason, but mentions
not seditiou. S^ition is the qualSt; of an of-
fcBce, and is oftantiinM token adverhiall;, or
adjectirelj. Te raise luinults or IreeoBsses is
sedition, Trb. 31 E. 3, loc. ^5, B. R. Garbart's
case; a man was indictcil. because in the bigb-
atreetbe took J. S. there being in hostile nait-
ser, and usurped. over liim rubral power, which
)• manifest sedition ; and there it wa^ but
indictment of trespass. Mich. aO E. 1, rot.
One that wu surreyor of tbe wood work for
Ibe kiag, wa« indicted tor stealing of timber,
and detaining wages (ridding cerpenteca wages)
b; one that was but aboj^; and this i) there
termed sedition, and jet it iras but a petty fe
lony. Micfa. 43 E. 3, rot. 05. B. R. K. Pope
was appealed by the wife of J. S. because he
{donioualy and seditiously munlered J. S. and
* aeditiousiy' was there put in, becauie it vaa
doneprifily. By.wbichciuesii appean,thaiSe-
ditbn is not tuken ni a subatantiTe, so that it may
be applied to irea»on, treapass, or other oSances.
By the sutute of 3 U. 4, c. 15, there is a pu-
Dishment inflicted for the raising of seditious
docbiue, and yet no punishment could have
been inflicted (br it untd the said siatale ; nod
yet 11 was Mditious, as well before the said sta>
bite. as after. And this appean also by the
ttatutc of 1st and <d of Philip and Mary, c. 3,
wbicb bath beah cited. The statute 13 Elii.
c. 3. recites, that divers seditious and etil-dis-
pused petBons, &c, obtained bulls of reconcili-
ation i'roin the pope, which oflence was made
treason by the said statute, (fur il was nnt be-
fore, and yet there wot sedition) and by the
said BtatuK, the aidera and abettors ara Init in
the case of Prenutnire. By tbe statute of 13
Klii. c' 1, for the aroidiiig of coi.rxntious and
•editions titles to the crown, It is exacted by
the said statute, That he that shall declare the
, is not treaaoii .by the
common law, nor is it ftiade treuaon by tbe
statute of 35 E. 3, ndr by the statute of 13
Elii. By tbe statnta of 93 Elii. c. 3, he
tliat tpeaks seditious nr slanderoui news of
tlie queea shall lose his ears, or pay tOO/.
and (he second oQance ia mads ii^lany. The
•talute of 35 Elii. c. 1. it againu seditious
•ecta^ies, which abtent tbeDudrcs front' iba
peat^ not what that act, MbtelJ'is called S
tion, was. This is the very grief intended to
be remedied by tbis statute ; to this be cannot
aoBwer accordmg to law. It appears notwhe-
ther this were a seditious act, trespass, or
slander, or what it was at all. The words ai*,
'Sedition acainst tbe king;' this helps 'not,
far every offence is against the king, against hi*
crown and digni^ ; that which disturb* tha
commonwealth it against the king; seditioaa
dactrine is leditian ogainst the king, as is be-
foresaid. In 38 H. 6, tiidt prettrat. fol. 19. tho -
lords and cafmnotii desire the king, that Wil-
lium de la Pool may be commiitMl Bk diaera
treasons, and sundry other b«nous crinn;
and the petition held not good, becauia toe ge-
neml: *hereupoa they enbibitparticular Arti-
cles against him, — Aud therefore upon tha
whole matter, prayed, that Mr. Long might h^
dlschai^ed from his impritonmant.
On another day, Berkley and Daveaport,
the king's Seijeants, a^cd for the king, tint
this Return was suihcieiit in taw to detain tbent
Berkky ht^a, and said. That the case is
new, and of grvat weight and consequmoe;
and yet, nider favour, the pmofnuiva «f
the Ling, apd the liben^ of tba aubject, aro
"" "■"■■■ly touched iherem ; forthe cr—
so general as It hath been made, but ju
ciiIbt
tha Subject is a tender poiBi, tbe ligbt whereof
is greaf, jus^ and ianolabla, Tbe I'renigaiiTC
1*5] CTATE TRIALS, 5 Chauli* I. 1629.— mi wfcw, btt an flateo. Catfut. fMl
of ^ StOf it an 1^^ poinr, to whicb -cTcrj
■bjecl ooglit ta lubout. I intrndiiat tuiuBke
ur riocooiH pf the one or the olhpr, I will
MjnatmbtT what the kioe bath determined
ufKni diem txitti, in hb ipeecb which he niute
4ipDD the Fecitinn of R'i|;ht; to wit, ihnt the
ptt^'i LJbeoies Blren^tben the ting's Pwro-
pbr^ ■nd thw the LiDg'a Preroijaiive is t«
ieftad the people'! Liberties. Thii inny nettle
tk heuow the people coneerniogtbeir liberty.
na nj wtucb I inteiid to treat in m* sr^-
Neol,i>, Eg umrerttieUt^ectionifindKeiiaona
wkidi Imje boen n»de, and lo ;;ive Mime Rea-
mo, whertby thh lecuni ihdl be luffident.
The Otgections wtiich hnve been made are
nduciUe ta faar heada: 1. Bj' vrhnt the
praanA here iball ba add to be committed
wd dttained- «- That this cammitnieiit is
ipiuc the P«tiiion.of Right. 3. That the
MB* irlach is bM« retumed i) general and in-
nnim. 4. That the ofieocet meotioned in
lU BctBm are bat flDeabte; and thercibre,
■otwitliuandtng them, the parcr ia bailable.
For tbe hm, it hath be»n objected, .That the
coamiMuni here waa b; Che lords of the privj-
coaadl, and the iigni6caiion of this cause is
if the bog faimaHf. Bat 1 mj, that diere is
* hrtbar matter in the retam ; for the Inrdn
•flh* eooMcil da it bj the coaimand of the
tn^tOd they only pume ihis cOniBiand. 1
■ill Mt dispate whether the Lords of the
Coiticil have power lo commit' an ofiender or
*», k is cammoa in etperiehce, 8.1 U. 6,38.
foipie^ CaM ii eipreaa in it. And in the
ttuioa of ttwht it is admitted, that thej may
Mi»it. And this is not alledged there for
iffttnate, but tb« grievaorre there wai, be-
CMse tbepartknlarcEarte of commitment was
BNahcwed. Some books hare been objected
n pten, that Cta« king, though in person,
OBBotcbBmit id; pertoni 16 H. 6, F. Mon-
Mrance da foiti 18t. Bat the anthoritT oF that
book Tanitbesb; if the case be pat at large,
which waa in ttcspaaa for cutting of trees.
tht defendant said. That tbe place where, Sec.
k ))*rcel of Itie manor of D. whereof the Icing
■ Miicd hi ft«, and th« king commands us to
m. And the opinion of ths court was, that
tUi i» BO plaa, withoac ahening a specialty of
Ikt cobmand of the king. And there the
■boliooort HjiiThatiftbekii^Conimandme
la arttw a man, whereby I arrest him, hi thaH
kare treapasa or impnaonment agnintt n>e,
dllMa(h ir%e done in (he presence of the king,
Thi tbe following words are to bt nnderstood,
tetlw principal case was of one command of
Atkipg bj word, and Aea sud> command bj
vanl to arrest a man i* >oid. And IH, t, A.
«*■ oHecced ; Hmw; says, th«t Marlhaffi
Madtokigg Edw. 4, that he cannot arrest a
■BBS fat tospicioii of treason or felony, becai
if h do wnuig, the party camot havehis actA
To tUi I ray, Tbtt ibe book there is to
aaierMood of a wrotttfiil arreat, for there il
V^kmof aoEKi^ohof folseimpristnnneOt; and
• neogfat ert«st cannot be made by the king.
'- ' ■« Boli^itbtbafligoityoftbeking
to an«at any tnna. Coke, 4. T3. The Uiig
Fnakn a leate for yean, rendering rent, with
condition of le-enlrj fur non-paymtnt ; tit
shall take advantage of the cauilitiou without
any demand ; and the rcasan there given, it,
thnt B decorum and conveniencji miglit he ob-
n-ed. So it is iTot beetling li^ the kiog id
person to arrest any man, tiut the king cokf
commnnd another to do it. BraclOn, lib. 8.
De acquirendo rerum dominio,' fol. 55. says,
That llie cninn of the king Is to do justice aiid
jadgment, and _/(i cere ^«bi, without which tbe
'n itself cannot aubslal. Several cimatmC^
) are to be made up<ici those sevend words;
the last Hord) ' facere pacem' imply, that
the king hath a coereive power. Britton f. 1.
mongst the Emrta. Tlie ting said, BecRUse
'eHi« notsafticientin person lo do erery thing,
e divide tlie charge into mnn^ partg. We
re the people's justice, add ajuatice implies
ne that bath power in do justice in every kind,
1 wit, by imprisotuoent, or otherwise, HO H. T^
Coke 11, as. it is said, lliai the king is tbe
Chief- Justice. And Lambert, Hi his Justice of
Peace, fol, 3. saya, That in ancieoc hittories,
the Chief' Justice ofEtigland is cntled ' Capi'
cnlii JasticiarluB et Prima Juslicta,' after tbe
king in England. Sa tiM the king bath tbe
same power ofjustice, as he chief-justice had.
This impriBonnient here, which is before coU-
ctlon for any offence, is not nsefl toward the
ibject BS imprisonment for any fault, but k
itner «n aiTeat or restfaiot to atold fvther iu-
jnvenieacea, 14 H. 7,8. A jnstice of peaca
may arrest iota riotously asscoibied, for pra-
tention of farther miKhlef. And tbe Bobk
sho aaya, That he may leave his terraiiu the>«
rest men, for saiesiiard of the peace. It
MM well knowD, that if a house lit- let on
Sre, every man may pull down the neit- houstf,
for prerention of a greater mischief ( *o it '
seems concerning the incendiaries of statt,
they ought to be restrained and supprest, lett
other! should be atirred up by them to the same
combustion, 33. Aas. 96. and 29 E. 4, 43. iA
false imp riaonraent thfe defendant justifies, be-
cause the plaintiff was mad and out of hit wits,
and thM he bad done some harm, end that ha
had boDtid and beat him lb avoid furtbtr
harm, « hich mitht hnve happened by bis mad-
ness ; and thejustification was held good. So
ititin matter ofgotemmenl; to avoid Commo-
tions, the king ought to use his coercive^ power
against those that nre etiriged. The olneclioH
wia, that this course was against the Petition
of Right. But I answer, That thia case Is out of
rhewnrdaof that Petition; the words of the
Petition were " Whereas by the statute called
tfaeOrentCharter,Bndbythestaniteor28E. 3,
no freeman may he taken or impriaoiled ;'-yet
against the leooor of ibe adid atatute, Ac
dirers of yonr subjects have of late been impri-
aooeiJ, without anv canae shewed ; and wbeii .
for tbeir defivenuicc, &c. they were brought
brfol^ thejusliftes by writs ofHabeaa Corpus,
ttiere to undergo and receive aathecourt should
Drier, and iheir keepert comniaiidcd to cFttH^
,,Goo^;lc
«7] STATE TRIALS, 5 Cbakui L lG29.-~l'roctediig* agaim ffm. Stroud, aq. [34S
the came of their dnuner, mod no cttDse was
ccrtiSed, but that thry were detained by joor
nifijestj'B apecial command,, liguificd bjr ibe
lords oFyour counciJ ; and yet were returned
back to se%'erB) prifona, without bring charged
with anj thing to which theif miKhi make an*wer
■ccordirig to law." 'ITieie lost words ore ob-
•ervable, < without being chained with an^ ihbg
* to obicblbej might make aniwer:' tliesewardi
Aa not refer to the return of the Habeas Cor-
pus ; for tlie cause returned therein cannot be
Cravened, 9 II. 6, 54. but the court took it as
true. But the setting fortli of ihe cause, and tlie
answer to the same cause, is to be upon oiher
proceedings, to wit, upoo the indictment for the
offence, or otherwise. And tliero is a great
difierence between the return of a writ hi
which a man moj answer, and die return of
«n Habeai Corpus 10 E. 4, and 3 H. 7, 11.
are, that if the aberifF return Retcout, all cer-
taiuties of every circamstnnco ought lo be
afaened ; because it is fitting, that a thing cer-
tain be brought into judjinient. And upon
shewing of the grievance, as above, the pelitiou
is, that no freeman, in nnj such mnnner as be-
£]re is mentioned be imprisoned or detained;
auch, and it hiilh relation lo such imprisonment,
wliich is mentioned in the premises. And impri-
■oument mentioned in theprenilseiof the ptii'
tion, is, where DO cause at all wasmeotioned;
theo where any cause is shewed, is out of the
petition, and tliat such h tlie word relative,
appears bj Coke li. 152. where man; cases are
put to the same pnrpow, wliich see.
The third Objection vin, Ihat the Reiaro
was general and uiicertsin. Ihe counsel on
the other side liiid divided the words of the re-
turn, but tliat is 10 offer violence thrreto; for
but L.
words, — ■ notable contempts' — it hatb been
•aid, that the addition of the wbrd notable is
but to makes fiourishi Bmlsaj, ThatnolaUe
is not the emphasis of the return, hut it only
Mprcsseih the nature of the otTence; and jei
'notable' is a nord observable by itself in the
law, and implies, that ibe tiling is known aad
noted. B/ 27 E. l, iheriBs shall be punished,
that let notorious offenders tci ball; and by the
■tatule of 4 II. 4, cap. 3, a notorious or com-
mon thief shiill not make his purgation : and 36
E. 3, 71. in a trespass for false imprisanment,
the defenduiit snld. That the plaintilT came
into the toxvn of Huntingtou, and because he
was teen in the company of R. de Tborby, who
was a notorious ihief, be, ns bailiff of Hunting-
ton, took him upon suspicion. I confess, that
— ' for contempts' — is general, yea, it is genitt
Mtaeraliiiimum, and within the Peiition' of
Right; but the words are,—- — ' ugaiost our-
' self.' It hath been said, that this might be
hj irreverent words or gestiirei. ' And our
' Government' it hath been snid, that this
wight be by contempt to the kinE|s writ, or by
Retraxit, as Beccher's case is. To this I an-
swer, thul thost words which are spoken to one
purpose, ousht not to be wrested to another;
tnd this is against the conuoon meaning of the
words. Coke i. Thou art a murderer, the de-
fendant shall not afterwards explain it to be a
murderer of hares, for the highest murder is iit-
tended. So here, the highest govenunent ia
4. It hath been objected that ' for slir-
' riTig up of sedition against us' may per-
h.ips be but an offence fineable; bat tboM
wurds joined with the former words, shew tbif
tu be an offence of the highest nature; sedition
is a special contempt. And attbou^ sedition
iu itself may be but a general offence, yet here
it is, ' sedition against us and our BoveriK
* inent' which makes it particular. It hatb
been confessed by one, that argued on-tbe other
side, that there is a general in a pafticular.
Cote 4. p, 75. Holland's r — ■'■ — '- *' ■
e, tberen
the state ecctesiistical. Thirdly, Tbereismore
particular, as tlie colleges, deans, and chapters.
This being in a case nf return up<m Habeas
Corpus, uo precise certainly is required. In
an indictment, a certainty ot all circamstanco*
is requisite; inpteading,!! certainty isrequired;
in counts, a more precise certainty ; in bars, n
is not s\ich precise certainty required bcro as in
iodictmeiit or count, because the patty ought
tO'BDSwer unto them; nor so much certainly
required iu this as in a bar. And the return ta
not incertain ; fur, as it is said in Plowdeu SOS.
and 193. a thing is ioceriain, where it may ba
taken indifferently ooe nay or tiie other. Bat
where the intendment the one way exceeds the
intendment the other way, it is not uocertaii^
as it is here. The words are, < far nolaU*
* contempts against us and nur Government,
' and for stirring up of sedition against ita.'
Here is a certainty of inteudment one way.
There are many writs which aro more uncertau)
than this return here is, and yet good. Ill*
Writ concerning the taking of an Apostate i*
general, < quod spretii habitn ordinis ;* and jet
there are more sorts of apotCacies. In the writ
concerning tbe amoving of a leper, the worda
are general, and yet it appears by F. N. B. that
there are two kinds of lepers, one outward, and
the other innitrd; and for the latter, the writ
concerning amoving a iepcr. So ihe writs coit>
cernlng ifie burning of an heretic, and coo-
ceming the burning of an ideot, are general ■
and yet there are sundry kinds of heretics and
ideots also. But it bath been objected, thai
Sedition is not a law-term, nor know'n in the
law, of which tbe judges- can take no notice;
but the words lo express oilences of this natiu^
are murder, treason, felony, &c, and that no in-
dictment of sedition generally was ever. seen.
To this 1 ansner, perhaps it is true, that no in-
dictment was ever seen made, because the form
of an indictment is precise ; words o£ art aia
required therein, at appears in Oyer fit>, 361.
Cote 4, p. 39. Vaults case; yet in 5 E. «,
Djer 69. itis said, that /araJniimpliaJc2ewr«
' ' gb the contrary hath been o ~ '
words by periphiui* are h
„ Gooji^lc
M91 STATE TRIAi:^, 5 Chaklu L 1020 and mim, on an Babau Corfut. [830 '
TbemmDt ofajaMiceof pe«c« UiB)^nben<l
J, S. becBue of prepeme malice, inttrfecU J.
D. B good enoDgh, although there wanti the
vgd mardrmit. In 5 K. 2. F. Trial 54.
Bilka^ My», That a miscreBnt ihall forfeit bji
lud. Out of which it mo; be gathered, that a
■HP nuT he iadicted for mucrenncj. And it
mnu liuwiie. that an indictment of aeditioQ
suj be good, for in >ome caset it is treasoD.
I ifree, Peake'i case, which hath been objected,
■kit fiir thcie wordi * ledittom iellow' do action
lio^iiMt wit Coke A- 19- bec«u*e those words
d* ngt inpon an aa to be done, but mAj an
■dJBatioo to do it; but if a man saj nich
wuds of MM>tber, whiGh import ll4at he htlb
■ade MdhMB, ib«f are actionable, as it wra
ifulfediD Pliilli|M'a and Badb^'a caie, 34 Elia.
C«ke 4. 19 • Tboo bait made a tcditiooi Ser-
'■00, and moved the people to (edition this
■day,' Btyn^ed BCtionahl*. So in the lord
Cramaatfa. Coke 4. 18, 13. Ac actjon woold
ba*e lain for tho*e notAt, ' You like of those
' tku main tain Mditiooagamit the queen's pro-
'ceedingt,' if then bad not been ajiotbrr mat-
Ki ie the case. I agree, the case of 81 E. 3.
Sir John Garbvoi's case, and *e E. 3, for in
tboM case^ sedition oaa onlj taken ndjeetive-
Ij, and ibein an indinatioo.only to do a ledi-
boBi act i Mid in tacl) aeose, sedition may be
oplied to other ofiencet tban (renson. In 31
£ 1. f, Gard. 15T. Gardein in Suc^e made
failiaeot of land which he had in waH, this ii
JMJeiture, says the book, for the treaaon whieb
le did to the ward ; la lbei«, one thing it called
mnoD, which is onljr a breaGh of trusC. In an
apped of Mayhem, it is ftlonici, mid yet 0 B.
T. 1. it a not lekmy ; but felony i* there only
fat to eipms the heinousneM of the t^Dce ;
It is, ai it were, a felony. The uatnte of 3 H.
4. 1 Uar. 13 Ela. 35 ^ii. IT R. !i. 3 & 4 E. 6.
14 Eltt. which have been objected, hafe the
aord •editkio, but oat applicable to thii case.
Bncloa in his book de Corona, says, * si quia,'
fcc If any by rath attempt, plotting tlje king's
death, sboatd act, or cause any to act, to the
Mfdon of the lord the kin^ or of bii aiiny, it
■ tMBion. And Glanvile, m as many words,
Myi, That to' do any tbinf in sedition of the
knyloiil, or of the army, is b^h-tieeBon. And
BrittoD, (bl. 16. it is tugb-traasoD to disinherit
iU kisy of the realm, and ledition tendeth to
the dinnhentance of the king; for, as it hath
ben Mid, ' Seditio est quasi saotMim itio,' wfaeii
ikepeaple are severed from the kingi or it is,
'Ss^anos i ditione,' wben the p*Q|i)* are
Kfcnd from the power of the kioc. And in
teieaw sedition ia do stranger m nor law;
ud mck sedition whicfa men the people Jrom
dc bs^ is tr«a*on. -
Btu It bath been objected. That by the sia-
■Ms of 35 E. 3, the parliament ongbt only to
tennine what is treason, what not. To this
I uNwer, That opcm the said statute, the posi-
Im law b^ always made ezplicstion ud espoai-
Dob. Br. Treawtn M, the words are ' Compass
|Driasgitiethede«thof tbekins;' and^reit
u takaa, (b» be tlwt malidmii^ denieth bow
tbe king may come to death, by word* or odtei^
wise, and does not act lo eipUio it. ni, in as-
saying bamess, this is treason. 13 £1. Dy. 9(%
Doctor Story's case, he being beyond sea, prac-
tised with a/oreign prince to invade the iMln>,
and held treason, because invasiou is to tbe
peril of the prince, Bnd~so within the itatnte of
fi4 £. 3, Mar. Dy. 144. The taking 6r the
csstle of Scarborough wos treason in Stafford,
by 30 Ass. p.- 19, whicb nns presently after th«
makingof tbeBlBtuteoftS£. 3. A man ought
to hare been banged and drawn, that brought
letten of eicommensemeul from the pope, and
published tkon in Eogland ; and it is to b«
noted, that at Che same time there was no sta-
tute to make it oeaion, but Dpen construction
of tbe said statute of tS E. 3, though now i«
bemade treason by tlie statute of 13 Elii. if it
he with intention to advance foreign power:
Peihaps the sedition meutioned in ihii return
ii high treason ; and yet tbe king may make it
an ofence finable, for he may prnsecute tlw
offender in what coune hepleasetb; and if it
be treasnn, then the priaoners are not bailable -
by tbe itatute of Westminster. But, luppose
Mat it is but a finable o9ence, yet by tiie said
statute, thaie wbo are imprisoned for open and
notorious naugbtiness, shall not be hailed ; the
nme naughtiness is there intended high aad
eigrhitant offence.
3, It ii Rt lo restrain the piisoners of their
liberty, that the cmuoion-weallh be not damni*
fied. It is lawlul to pull down a bouse to pre-
vent the spreading mischief of fire ; it ii lawfttl
to reitrain a furious man. And by the 14 H,
T, a justice of peace may rettrain a rout. Tbeit
the restraint of dangerous men io the common-
wealth ia justifiable and neceiiary. 34 E. 3,
38. p. 95. sir Tbomns.Figet went armed in tbe
palace, which was shewed to tbe blip's council ;
wherefore he was taken and iliiuriiied befors
the chief-jusdce, and cominitted to the prison,
and be could not be bailed till the king sent
his pleasure; and yet it was ihcwed, ibat the
loid of T. threatened him. Out of which cbs«
I observe two things: 1. That tbe judge of
this court did cause a man to be sppriheoded,
upon complaint made to the council, that is,
10 the lords of ihe privy-council. 3. That al-
though he did notliing, he is not main emable
until tbe king sent his pleasure, because he was
armed andfurioiudydisposed. So here. Where-
fore I prey, that the prisoners mty be sent back
again,
DownpDrl argued to tbe same intent and
parpo^e, and therefore I will report his orgo-
ment briefly.
1 , He anid. That the return hov is sufficient.
The counsel on tlie other side have mode trao
tions of this retarn, and diviiled it into several
parts, whereas the genuine construction ought
to have been made upon the entire return ; for
no Tiolenca onriit lo he odeicd to tbe text, f
£. 4,90. InG^ imprisonment, iheddendant
did Justify, and alletked •everal reasons of hb
wit, becauH a awn w M kiUeil,
jmtjfiaidoo; to wit, bi
CM] STAT£TRUt£, sCm^fajni. I«i30.
and thai, tin* wm w ([-.e eoniAgi of S. Biid lint
Ae commoo voice uid fsMe waa .ttmC the
ptobiliff ivus culp«Ue. Aod tlus mi held n
eiud plee, althoQgti Biynn did there object, ,
JhM the plea vai double or trable; aod the '
KKSoa waa, because twentj cana of sosfiidon .
towke but sne entire catue; and indivisiMe
luiity in tlii» ou|;ht not to be divided : lo Cuke
S, M. Crogate'i cue. In an action ef tret-
)nu, the defeudant jaitifiu tbr Mvend cause*,
■nd keld goad,.becaiue iipon tlkc mailer, all of
tiKB adce iuit one caote. Coke S. 1. IT, It
M «nid. That it is aa aajoM thing, unlesi the
mrhoit Iftw be looked ino, to jud^ and BDswer,
kj pntpoundiD^ anj one panicnlsr (hereof^
and tf . il be anjiMt in the exposition of a law,
it i« uncivil in a reOini to make fractions of it ;
in the conttniction ihereof etpeciallj, it being
a return tbr infomMioB, sod notforaccuiation,
S. AltlHiUKh the couasei on the other side
hare tat«n thit caie to bo nithia ibc Peiidon
of Higbt, ;ct this ia Petitio primipii, to tak«
tliat lor granted which ii ihe question in debate.
^ He said. That be wouM not o&r notence (o
' die Petitlou of Ki^ to which the king had
asKOted, and which ahall realty be perfonbed.
•aid statute.
S. He Slid, That diii wai the actual commit-
mmt of the lords of the prtr^-cduncil, and the
habitual or virtual commitaietit of ibe king.
£fiut b«c«|UM upon these two maltw* h« pat
m case, not gave anv reaion, but whM had
beeo put or giren ia tfae argutneat of the fmul
Habeas Corpus, Midi. 3 Caroli', and aflertrards
in the hoase of coianwins, (vide page 5(>, tec.
■ate) which »u reported to the lords in liic
painted cbaiobcr, I hire bere omitted theai.)
And for the great rcvpcct which the law nrftt
to ibe commands of the king, he pot umm
cases : 7 H. S, attadiment,af waiu against lb*
tenant in dower, and the waste wai uiignad
d the
of die k)rd the king, took all the Bsh ant of the
■aid pond to the use of the lnlll the ting, and
lield a good junificatitn ; wtnrh provea, that
&t oommand of ibe kins tli«re to ber husband,
excased her of tha said waste. And jet it is
clear, that a tenant in dowctis Halite to an actioa
of H'Bste, for waste done ia the time of her
second husband : but coatisrj is it, where a
womnn is tenant for life, and took a husband,
It ho made wnste and died, no action lies against
die wife for that watte. And F. N. B. IT A.
If the tenant inpr^pi at the faaJ mip€ make*
fchafa, the king may tend mrriito -the jwtWM,
rehtarsing that ne wat ia hit tervica, sc. com*
Mandkig Ibtco, that that dalMt ha not pre*
jndidal to him ; aad tbil oomataBd of tha king
■ 4. For Ibe paiticrian of theritan, it it—
* famoiiMawiiirwptiapiaiithiaBtiiMaii^
. — PnxMa^agaiBSt Wm. Slroad, ag. [US
— Ixitatto that, it bath been laid, that the
king hath sondt^ governments, to wit, «c<leit-
ratical, political, &c. and it is nM ibcwn agaioM
which of thnn. This it but a ornltiag eiccp-
tioB ; tiitj Bight at watt htva excepted to ttna
reUMi, becHue it it not tbewn, tli>t these coa-
t^tptaweK*fierdKkutgenei«l pardon; that
had been « better ncf[FtiMi. The hut ^ord*
of the rerarnaie,— ' raiang sedition apinttBt^
—but Bi to this, it bat bean said, lliat tJilit h
not a wont knowa m the law, ib4 is a]*fg%
lakaa eitlter Bdverbiallj, or adjectivelf , and ia
not a tubitantive. Toihishiia>d,ihatalth«i:^
it is not aintHtantiv* for (he preseiiatieit, j«t
it it a tubstantiva Ibr the ctanruction of a king-
dom. And he said, that Itt fcuad the word a^
iifw in the low, as! the^^nteqiient of it likew.
wise, wUch is Mlacti* fvapafi. Bat it it not
ever fotmd to be takan <iD a p>od tease, it is
alwiiff iHnhed and caapted *itn irtnion, rebeT-
lioo, iutai'm-Uusi, ar tucfa Ifte, as it appMta b*
all tbcae tuMatM itldch h»v« bean laiaenbared
on tbeoihar nde. ThatafoR he pnjtd that
the PriHmtrt a^t be aent back.
2Via. iC<ir.I.lLR.
Tbe 6i«t da; of the Term, upon Haheai Cor-
pus to sir Allm Aptley, the I^aiienant of tfae
Toner, to bring here ihe bod; of Jobo Selden,
etq. with the cauM of detetitlon ; be retsmed
the iBia* cause at in Mr. Stroud'i case : and
&Ir. Littleton (aftenrardt sir Edward, and Chref
JnsticM of tfae Comau)ii Pleat, and Keeper af
tha Great Seal) of couniel with him move4.
Hist the Itetura wat intafitcient in tehttaace ;
■itereloTe ha prt]|ed that ha might be bailetl.
It It trac, that it is of great omnpiem:*, botfc
to the crown of the kine, and to tlie Libertv of
tfae Snlject. Bat, under favour, for tlie din-
cully of law colRaihed to it, the cat* cannot bfc
calltd grand. In my afgunteiit« I will alfiH- ■«-
tUng to the cann, bat tntt which I have seek
with these eyet, and thai which in aiy BBdei>-
Btanding (winch is vadi sabject to mittakea)
can receive no tafitaent aaswer.
I will divide bit arBBment into four levend
Iletidtt
1. To pain
aaneceiaary, i
in qaetlion.
8. I wilt coatider the Warrant of the Pnrf
CoDncit hi this caae.
9. The Warranieflhekinibiiatelf.
4. Tfae Ofajaatiom wbioh have beta mad* b»
the oomrtBT iMe, tbe strength of them, anil
give antwet'ta them.
For fbe Gnt of theta heads, 1. I wSI adnit,
thu Ike kieg tawr tsatanit a maa. 3. That a
man committed b; tbe king it not reptevitaMe
by tbe therir, but ha i* btuIaMe by this oonrt,
notwithitaading thattatBte of WetiM. 1, c. 15.
Am) that h* shall not be bailable, it ^inn ibc
Petitiatt of Right; I will not dispute it, for il i*
eMahMted by iha Aatiiet of tbeking to lite taid
Petitioa. AodlheargMiieatsnadetalhispatii-
the said pariiuneBi, aad in the Ftiate^l
MeMthe
ehuthetiK
fiS] STAYbTEIAIS. iCaAtLL»lAM»^-^n4»Am,oKaaIIabattCotpn. [SM
to whieb erenr on* nwif reiorC
Uui 1 BUI M^ n ■ grouDd of mj fbli'iowin; u-
ffovt, ifaMm offeBces an of (iro natarei,
[^litd, or m treqielKa ; >o th^j arc panisbc J
ii tiro rnDDcra, lo wit, CBvAoUy, or by fine,
wivpriwaiaenC- Bra tbc uBeuce* of the first
aiMR, ■■ TreuoH, and tfaa tike, impn-
HMKnl id impoMd upon ttw ofieniler, onl;
; but for miicicnMaDors of ihe
mpoietl upon
L Tbtn this, m nj ground,
1 tbat B imprisoned, onlif for
■ bafvrit cofiviction, loajf be de-
PBcd » priua irichont bail, if it be oSerad,
^w it bs in mhbc paiticular caws, in whicb
il('Caatrar7 i« ordaiiwd bj taji puticuliir bib-
(. For ttw Wwrant of tbe Pri*; Council,
■Aicbsgnifits tlicplauureof til* king to con-^
mk the prisoner ; pcrhapt ttlia oas a good
foni of the coraButocnt, bnt it is no ground
Jar iht detaining uf the prisonar wiltiuot IhuI ;
MJ tba the king himself hath aoknrrwtedgad, 08
da ucient right of the rahject, in tbe PetitiiHi
i^Kight; wlierefareitisnMnDii' lo be dttpuled.
3. Fur (be Wiu-rant of tbe king, as it is car-
lifed hf Om R*tam, thare ii not an; tufficient
, wae contained witUn it, IbrttiedctuiHii ''
ibt priiaiMr in prisaii; ibr tba lavr being,
hra declared above, that for a tniwltincaDor
bMw caneicDan, no frteman nm^ be iimpn-
xwd before conuerion, nithout biut or pibid-
pK, tbcst^.qDestioa noW i^ if tbi* return
MWain mitluB it anj capital offcoce ; or if onij
tmmat or luwieHMBitor, and tlien tlfe part]
a btilMile : and 1^ the dimaiiilion hereof, 1
■iU coAwlCT tbe Return-, 1. Ae ic ia divided ii
Mwial pBTU : 3. 1 wiU ccmtder all those pnrts
of i( tegether. ], As it is tetvrcd- in puns.
Tie first part of it, ' for notable coniempts bj
' bin> cimnutted against oor«etf andoor gaveni-
'aeni.' For ' cowetopta,' ell conteDipts are
ifiiDfi tile Icing, nudiatetf, or immediately,
■Bd agaiust his government. ' Nultble,' tbii is
d one nilh notoriam and maHifeM, as nppesrs
^llwMatateofWcstm. 1, c. 19, and iaE.»,
Ii, vhich batb been remembered. And ' no-
■■Me'ittiDt an- enplutlicBt expreasion ef the
Mweof tbe tbing, and alters it not. 'Against
la,' iU riots, ronis, batteries, and trespRsses,
■e against ua, and aninat our crown anif
tpilj; contempt againat our coutt of jus-
tica IS & contempt agninst us. But If (he
Brtura were made hete, that he was con»-
Wlad (or a coatempt mBrie- in Chancerv,
t^ jwiv ihalt be bailed, aa it was resolved
is tlus Court in Michael Apsley^ case, and
in Rmweira caie, 13 jacobi, for (be retorn is
IM gtBeral. In it tbe nature of iIib. oflence
N^t to be expresaed, that ihe court may jodge
tmof. And ' coniempts' liere itvtdimitutiiii
■Bgta .- tberafqie fo>- (bemt hetoft coaviction,
■W paror cannot be imprisoned withont bail or
■aioprize.
The aacond putt of the Return is ' and for
'Nuriitg up of Sedition ngainat US:' tbe other
«li Mid, TUbwdill* i* «««r Uken in ibe iM«e
I; that is trne. But hence it fellow»DMt
the party that coiO'nTts it is not boUablr.
Every small offeoce is taken in tbe wont sense,
a* (lie stealing df nn npple, and the like ; bnt
such bind of oQenders atialt not be cammicied
without boil. To eiamine Che natlire of Ihia
offence, which is called ■ sedition,' it ought to
be understood, as tliis Return is, either as ires-
posB, or as H^ Treaaon ; for it cannot be in-
tended to ba Petty Tr^astin, for Petty Trcft-
son is Ml called in nspect of the oltnce
done to any panicidBr subject ; but in respect
of the hing^ it is but as a Pelony, therefore
the iDdictmiats for the aaine are felanioesly
aod traitotondy. And here the words are,
' sedilioB against u* ;' so of necessity it
ought to be intended of an offence, that more
itDmcdiaCely concenis (he same litiig. For the
diicusMHC of this matter,
1. I will conaider in whet senK and Mgntfict^
tioQ lbi« word ndilio is- used.
S. How it shall be expounded here by rela-
tion iliereof to the king.
3. W hat ainse these Honh 'against us,' ilwll
have here.
1. For Sedition ; ii t* not found in the di-
vision of oSesceB in our law, bnt at it h min-
glad and coupled with other offences. No in-
dictment of aeAtian only wm- ever seen, rtor
can be abewn; roatt. Hots, and nnlawtnl-ossf m-
bliee, are munb of the iinne nature with it, and
d« well eipresB the nature of sedition. The
Enebah word is dhiws from the word' leditio
in Laein, aud the dterivalion of it is, as hnth
beaa observed, senjin, or uonum itio ; atld the
seditiout, as one says, take a diversion and
draw otbers : it is used in the Bible, in poeta,
hiitiirieat and orators, for tumult, or hurly-
burly, or uproar, or euofosed noiw, — ' Seditio-
' que receoa dabioque sosurro,' in Liv. lib. 3.
cap. 44. Aiid in Tacitus it is taken for mutiny
in an army, when the army is always repining
nt the captain. In the Italian Isngua^, which
is ihe elder son of Luiin, sedition and discord
is all one. Numb. caff. M, 3, the Latin tran»-
ladoQ is, ' Ver«i in sediiioiie;' the En^ish i«,
' chode,' or ' murmured.' Numb. 86, 9, the
Latin i", ' In seditione Corah ;' the English is,
' In the Companr of Corah.' Numb, if, S,
the Latin is, * Ncc fait in seditione eorum;'
tbe English is, ' in ihe company or assembly of
ilwm.' Judg. 12. 1, the Latin translation is,
' Facta Mt eigo seditio in Ephraim ;' the
Englibh translation is, ' Tbe men of Ephraim
Sithered themselves together.' In the New
cstament, Acts 19, 40. Seditio in the La-
tin is iranriated ' Brroar' or ' meethiB.' Atf
15, 2. ' Facta est ergo seditio,' &c. and
it is tranttated ' diisension' and * di'spocaf
' tion.' Aets 84. 5, TertuHus the Omtor
accnaeth Paul for nioving sedititni ; atid tliQ
subseoaent word* are, ' A ringleader of the
seot of the' Pharisees ;' so that his sedition there
was bnt a »chisnt : and the words there are in a
inannet the retj same with out's ben ; then it
was, ■ for moving ;' btfre, ' tor attrring of Sedi-
tion.' Siiilio,- a* ao apprared ainfaoT aj«',
t5&] STATE TRIAI£, 5 Charls* L lesa^—Pnceedingt agaiiul Wm. Stnmd, aq. [Uti
imporU diKordiam, [o-wit, when die memban
of one bod; £glit BgainU aootber. Tlie lord of
St. Albsrii, who was lately the Lord-ChRiicellor
of En^nd, and wm a Uwyer and great >[Mes-
maD likewise, uad well knew the accputioii of
this word < >edi[lDD' in uur law, halh madean
essBi of wdiiion, end the title of ihe essay is,
* Of Seditions and Tumults;' ihe wbole essay
tleaerres tbe readiag. (See 3 Bacon's Works,
Seu.) And there is a Prayer in llie Litany,—
' from Sedition and Heresy, &c.' bo tliut iiere
■edition is uken as a'kiild of sect.
t labour sliall be
any thing In our Law cross tliis expaiitton.
And it saems clearly, that there is not, 3 H. 4,
B. 15. And it is b the Parkiametit-roll, d. 46,
Bj^nst Lollards, who at tbfit thtie were taken
as hereUt:s,nad lays. That sucli preachers which
excite and Kir up to sedition, shall beconventad
before the Ordinary, &;c. There, sedition is
taken for dissension and division in docirine.
And tills is not made Traason by the said sta-
tute, although tbe said statute be now reiieoled
fay the statute of 35 H. 8, c. 4, 1 and 9 Piiil.
& Mar. c. 3, which ij in Rastal, News 4, which
i* an act ^ainM seditious word* and news of
tbe king and quMn, which is a great misde-
meanor ; and yet tha punishment appointed to
t>a indicted by th« lajd uatuie, is but the
pillory, or a fine of 1001. And the said sUiute
by the uatute of I Elia. c 16, was extended to
her olao, which statute now by bar death is ex~
pLTed : which I pray may be obtened, 1 S Elii.
cap. 1, aeaiDst than who seditiously publish
who are iba true beirs of tbe crown, tlut they
■hnll be inuKisoaed for a year, &c And 13
^iz. c. S, theseililioas brinning in of the pope's
btiUs i* made treason, wluch implies, that it
was not so at tbe common law. 23 Eliz. c. 3.
If any persoa shall devise, write, or print aqj
book, containing any false, seditious and slnti-
derous matter, (o the stirring np or moving of
any rebeUion, Ike, evtrj such oSence shall bo
judged felony. And in an ladictment upon the
laid statute (which see Cuke's Entries, f. 35S,
353.) there are the words—' rebellionem et se-
ditionem morere;' and yet it is but felony, 35
Elii. c. 1, miide against seditious sectaries.
Also there are certain Books and Aullioriiies in
law, which express the nature of (he word se-
dition. Cuke's 4 Ilep, p. 13, [he.lord Cromwell's
Case. In an action lor those words [' you like
■ of those that luaintun seditions against the
' queen's proceedinis'j the defendant pleaded,
Thatiie intended the maintenance of^ a sedi-
tious sennon; and this was adjudged a good
plea and justlEcatloo. From which it fuUows,
that the seditious sennon mentioned in the de-
claration, and the maintaining of sedition against
die queen, is all of one signilicatlon ; for if
they might haie been tak&i in a diSerent sense,
the justilicalion had not been good. Philips
and Badby's case, which is in Coke's 4 Rtu.
p. 19, a, which was olijected by se^eant Berk-
ley, makea strongly for me ; far there an action
Upon the cue nai brought by a person for
those words, ' Thou hast made a sedilims Nr>
' mon, and moced the people to ledition this
< day,' And nlihough it were there adja>lgad,
that the action lay, y(t the renion of the Judg-
meut is observable, which was, because tbe
words scondaiiie tb« plaintiff in his profesikm ;
which iiu^v, tluit if they had not scandaltied'
bill) in hii ptofetsioD, no action would kite
Inin. And ordinary w<.rds, if ihcy scandalliei
iKian in tt> piolesMua, are actionable; «t to
say to « Judge, that he is a oirrupt mas ; or to
'a Merchant, that be is « bankrupt; allbonghif
tliey were spoken to another man, tiley wookl
not liear anactini. Ami aliliiiugh tlia Book
say, that no <ct followed there; vet If the nat-
ter objected liad been ireason, the very nil!
had. been punlh.ible, and, by consequence, a
great slander. But It is ohairrved, that wonls
which imply an iDciti>atii>n unW tn sedition, are
not actionable, as ' seditious knnve;' but iudl-
nntion to treason is treason, therefore words
wluch imply it are actionable. And also foi
divers words an action upon the cnse will lie,
which induce not treftson or telony ; as Gic
calling a woman wbore, by wliicli six loaeth
her marriage, and such like. Then seditina is
no oRence in Itself, but the aggravation of an
oSence ; and no indictment, as I hare said
afore, was ever seen of this singly by itself. THn.
21 E. 3, r<^t. S3. Sir John Garbut's caM, which
was ptit bcfirre by Air. Mason; the indicunest
was in prejudice of bis crown, and in manitot
sedition ; and yet the ofietice there wis bat
a robbery. It is true, that upon hii amu^
ment he stood mute, thereforo tbe Roll is, that
he was put to penance, that is, lo etrong aoit
liardpain;uid this proves, that it was not Trts-
son i for if a man arraigned of treason itaod
mute, yet the usual judcinent of treason siail
be given on him. And it is true also, tl«t he
cannot have his cletvy, because intitUalar mt-
mm was , in ihe indictment; wbich if it was,
outs the party of its cler)ry, until the Statute of
4 IL 4, c. S, US is observed in Coke's'!! Rep.
p. 39. Aleiander Poultcr's Case.' And upon
the same UoU of 31 £. 3, tliere are IburDtlier
indictments of the same nature, where trdili-
ati is contained in them. AncKi 1585. Qumd
Elizabeth sent a Letter, which I have leen, by
the hands of Ihe noble anliquary sir KoUit
Cotton, to the mayor of London, for the sup-
pressiog of divers seditious Libels uhicli were
published against her princely government;
and yet in the conclusion of the Letter it ip-
Girs, that they. were only against the earl of
iceacer, and diis was to be puUljhed oaly by
proclnmation in London.
5H. 4, m. ll.Bud.13, theenrlnf Northnm-
berland preferred a Petition to tbe king in par-
liament, in which he cootessetb, that he Md
not kept his majesty's laws as a liege subject ;
and alio confesseib the gathering of power, and
tbe givinK of liberties: wlierefore he petiiiwied
the worJiipofthe king (for so are tiie •rords)
for his grace. The ktoe, upon this Petition,
deinamlM tbe opinion of tbe lonb of parha-
tdent, and of the judgef ■iiiihint, if aoj tbof
Goo;;lc
H7] SFATETUAXS, iCuAKMl \92»,—Mdcilkri,enmHaiea»Corpia. [3S9
ewUiaad wnbia tbe uid Petitiin ««ni tren-
MD, M so-; Bnil it was reiolvvd by tlitm a)),
ihu notting, a* it is inaitir>ni;d in tiie ^hliI IV
titiaD, mw Ti«Bs«H, but great MinlemeaDnn ;
mJjBlinilT. Ihough not fjllj there inemioiicd,
it wM ■ fttM reb^ioQ and inBuriectiQn. But
tirf (djudfjed iccording to ihe inid |ietiuoii, na
jmi an now in judRe upon ilie Kelarn as it is
■wta lisie. Id Uich. 3S Eliz. Caivdrj's Cnsr,
Cob'i Sftb Report, p. 1. Sfditiun and Schism
re itKfiiitd; ai Scliism is a sepsrnlioii from
ijof liia Church, to Sedili
•'Ff
ntico froB the aaitj of the Common wrBlih.
ltd an Author says. That ■ teditiaus person
i&n from a schismatic, becanse the one op-
fSKtfa the ^iritnal troth, -the ether the leni-
Mnli andasScbtiTnof iisell'i* not Heresy, sn
Stdin«D without other lu^uncts is Lot Treason,
facton, r. 112, IIS, 118. hath been objected,
itat be makes sedition trvnon : I will grant to
lifm, Hcngh^ni alan, wbo is tn the smne pur-
foss : far ill those Dot^s it is callt-d, ■ Seditia
'regiiet ragni,' To ibeoi I answer, 1. Thnt
ikef ars fthuere. For what signified ■ sedttio
'iegii,'or 'lumnltas regis f Shall it b« the
BBe thini in sense with ' seditio contra re-
'tm}' It seen>rlhat the said authors neither
mtanber law nor languafce. 3. Although they
nkon teditioa amongst the crime Iteia tuajn-
Wit, yet that is nut to be regarded ; fur tbey
veoinnlete Authors, and are not eHteenied as
Ntkrt in o jr law, as ii is in It. 956, and Coke
1. 35, hot tbey mny lie used for ornamenr, and
thy are good marks to shew to us how the law
•tithtn taken, but not to declare bow the law
iisl ^ ilay ; they are no bbdiag 'authnrity ;
mdirihey be, yet we have tbem on our side
Htw^: for in his 14th book, GlanvLle says,
Tjnt a man aocated of ftudi a crine shall 'be
Ultd, and that the accoser thai! give pledget.
MBracvtn tays, That if no accuser appears
Aty tbaJI be set «t liberty. And Heugliaa
■wbont anonaiil the crimes Uag rntatit/itit, ihe
teach of the peace, and so does Glan*ile alin.
Hctii, who WHS a fullower of 'Bracton, and
Masctibt* much verbatim out of liim, cnlU
Wition, ' Seductionera' of the lord the king.
Aid It Edw. 1, tbe statute of Rutland, which
pncribes lawt for Wales, enacts, that the
<^f (hall inquire in hit turn, ' tie seduetori-
*bm donini regis;' and it is. not apparent,
*hnher be intended those which seduce the
iia;nr his people. And in latter cimes, Sedilio
■ odled Stdutia. In tbe time of Hen. T, tbe.
Mri sTNoftbDmberlaDd, being a gneat and po-
int peer, and the kino standing in awe of hun,
natnl hiin, with 34 others of ^at qaality, to
**(tr into as obligation of 3U,000f. (which ob-
Iplion it in the hands of sir Boberl Cotton)
ntd him, That if the said earl knew Treason,
Sadntion, Jots, &e. to be intended to the ktn^
lh« he should reveal it. S. Also ' cHmen
'has majeataiit,' which it the phrase of the
Cnil Law,'it more general than Treason ; and
^oU aathan which baye been i^ited macb,
Mbw die GtW Law, which bath this expres-
Ma; and ttdition by tbe Cifil Xa" i* Irettton.
T«1- III.
of Justices,' the principal copy where<jf is in
llcunet-Cotlrge library in Canibridge, and ihera
is also Bcojiy ill LiDcolii't-Inn librvy; nor
Bri-.lon in his book, who writ in tbe name of
the king, hare not the word Sediiio in them.
And I Bttiriii confidently, that Ibire cannot bt
■hewn any record, Ixiuk, or statule, after ibe
making the otatata of 35 Kdw 3, in ubich ,!!ie-
^tio it taken as a capital offence. And yet
the.'Mirrour of Justices' reckoita up several
kindi of Trenton, which he divides into Tree-
sons against tha celettial or terrestrial majesty ;
of A U. S, Trial S4, is to be undetslood, which
■ays. That a miscreant diall forfeit his lands,
because it is a kind of treason). And also hA
■hews divers Treasons against the king, as, Tha
(teRowering of the king s elilekt daug]it«r, &c.
butnota word of Sedition. But admit, that Se*.
dition imports a greater ofK^nce than tumult,
£'t there is 00 colour to sav, that it ia treason ;
r 25 Edw. 3, is a flat bar '(that I may use iht
loiier-Teinple phrase) to any thing tn be irea-
son, which is not contained in it, unlest it be
niade treason by any tpeeial act afterwards;
and 35 Edw, 3, does not make St treason.
Stamford cites Glanville, and Bmctoti, and
other ancient books, to shew « hat was treasoit
before the said statute, and what not : and hi
says, that it was a great doubt what thdl be
caLed ireasoD ; ■aviiig (hat all a^ec.'tliat any
thing that tends to the deiilH of the kins wat
treason. 3djy, Now examine the words